I had an interesting dialogue today with a fellow criminal defense attorney, Trace Rabern, about the basic principles of trial preparation. We were taught to work backwards – start with jury instructions and once you’ve got the elements of the crime, move onto how the facts work with those elements. As Mark Bennett put it “the elements are the terrain on which the battle is fought.” OK. For those readers who are not lawyers, let me explain this to you – elements are what the crime is made up of, what the government has to prove in order to convict you (bear with me legal readers) So, let’s take, for example, Assault. As regular people you think of being assaulted as being beat up. But that’s not what the crime of assault is. Technically, (in Maryland, each state has its own definitions) an assault is an attempt to cause either offensive physical contact or physical harm. So, in order to convict someone of assault, the State must prove that the person actually tried to cause the harm, that the person intended to bring it about, and that the person’s actions were not consented to.
The jury instructions in an assault case will have this all laid out, the judge will define intent, define harm and define consent. Then, what the lawyer does is plug in what the facts are (and, remember facts are not the same in law as they are in science) and manipulate from there.
Right, so are we all together on this so far? We start with jury instructions. It’s quite boring, its not at all like Law and Order and a lot more like, I don’t know, let’s see – oh, like work. Yes, that’s it. It’s work. But its basic. It’s how you prepare a case for trial. It’s how you interpret the facts and the law and its how you even begin to be able to advise your client on her chances of success at trial. If you don’t know what the state has to prove, how do you know if they can prove it?
I am naive, dear reader. I think this is shit that any first year third tier law school graduate would know. But, alas, once again, I am mistaken. Apparently people do not know that this is the way you start prepping a trial. People do not know that in order to get ready for trial, you have to know what the trial is about. People go out and try cases with nary a clue as to what the state needs to prove, what the defenses might be, and how to actually defend their client.
I wish I could do a post on how you, kind reader, could avoid hiring a lawyer like that. How will you know that the lawyer you have chosen to defend your liberty has read the jury instructions, knows the elements of the crime, and knows what defenses to put forward in order to see you are well protected? How will you know if, when your lawyer tells you that you should take a plea, its not because he doesn’t know where to start to prepare your case for trial, but that he’s prepped it and knows you have no chance to win?
This post is not about those questions. It’s not about helping you find the best lawyer for the job (although really, you are already at this blog, is that really a question you need to keep asking yourself? Duh.) Rather, I am wondering where have all the mentors gone?
Not everyone will have a Terry Kindlon. But everyone should. Young lawyers should not be expected to get out of bed and try a killer case with no idea of the tools they have at their disposal. I get that. But most young lawyers have friends. Maybe even older lawyer friends. Could not a younger lawyer ask questions of other lawyers? What about a trial advocacy class? What about just using the internet to figure out how to prep a case for trial? Back when I was a baby lawyer, we had this thing called books. The first book I ever got for trial work was part of the Nutshell series. It was called “The First Trial, Where do I sit, what do I say?”. Before I went to the National Criminal Defense College’s Advanced Cross Examination seminar (which I highly recommend) I had a copy of the Ten Commandments of Cross Examination at kept it close at all times. I ran a google search on “how to prepare for a criminal trial” and came up with this fantastic website that details just about everything a lawyer should know/do/say/dress/think before a trial.
I will admit to being a super thowback. I have packs of index cards – one fact per card. I move them around on a wall like pieces of a puzzle. The cards are next to my jury instructions. It’s a great big collage and I have to put it all together so it makes sense – so it looks like a beautiful smiling woman instead of a warty old lady. But, that’s just me. Each person has their own methodology of prepping a case. And, as long as you prep, it doesn’t matter if you use power point or a legal pad.
But, there is no excuse for not knowing how to prep for trial. There is no excuse for agreeing to represent clients when you have no idea how to prep for trial. There is no excuse for taking people’s money and holding yourself out as someone who can try a case when you don’t even know where to start.
But, people are doing it. People are taking money, taking cases, and going to trial without a basic, fundamental understanding of the crime their client is charged with. Why?
We went round and round today on this. Is is due to apathy? An unchecked ego? Cockiness? Perhaps its due to a lack of empathy for your client’s situation? Laziness? Maybe you aren’t getting paid enough or you are getting paid too much? It’s hard to figure out or understand, sort of the way I don’t get why people are serial killers, like to pull the whiskers off soft, furry cats, or hoard.
Hopefully, our inability to comprehend bodes well for us – we don’t get it, so we can’t become it. Unless we get old and fat and lazy. Unless we start to believe our own hype, that we can start in the middle and play at fancy criminal lawyer without putting in any real work. I am not yet fat or lazy (although I’m edging ever closer to the old part) and I haven’t had a year of lawyering where it wasn’t work. But its work I love, its work, quite clearly, that many of my colleagues are passionate about as well. If we start in the middle, we miss half the fun.
I'm in University of MD, but I'm taking two classes at Baltimore this summer.
I was astonished after my first class this summer in Md. Criminal Practice with Judge Levitz.
I said to my wife that night, "How can Maryland allow law students to graduate, knowing that many of them will very likely end up doing criminal defense, without any of the basic knowledge that I'm getting out of this class?!"
This is my final semester. If I hadn't decided, almost on a whim, to take this class I would have almost no understanding of ANY of the basics in criminal defense.
Contracts and Property are required courses.
Criminal Law is required, but is almost misleading in how it frames criminal law practice in law students' minds.
Mentors are necessary, but law schools shouldn't assume that all graduates will get one.
MIrriam, Great post.
A little background in how this came up. I started ranting through tweets because a busy, not-inexperienced trial attorney asked me, while her jury was deliberating, about how to answer a jury question about the jury instructions. This was a self-defense domestic battery (one of those cases where a woman fights back and ends up using a carpet cutter), so I asked about the jury instructions, and what they chose to do about imperfect self-defense. She responded, "what's imperfect self-defense?"
Unfortunately for her client, the answer is "the facts of your case"–acted sincerely in self-defense but somewhat unreasonably, either in her perception of imminent threat, or in her dis-proportionate use of force. It creates a lesser-included offense without the intention element, provides a "third option" between guilt as charged and acquittal on self-defense. Here, imperfect self-defense requires some special-drafted jury instructions around the facts of the case as per defense. The great thing about it in NM is that it shifts the burden to the government to prove the act was not imperfect self-defense. If there is doubt about whether she was sincerely thinking self-defense, even if all the jury agrees her actions were unreasonable, then she can't be found guilty of the crime as charged. In this agg batt DV with great bodily harm case, the verdict could come down to simple battery or even disorderly.
Okay that's pretty geeky. But the point is, any lawyer going to trial should have known that. How could she counsel her client on any plea offers without knowing that theory of the case? How could she counsel her client to go "all or nothing" without the third option, without laying out the third option?
Once the jury is deliberating on the choice between guilt and self-defense, and it sends out questions about what it means when they think she over-did the violence in response to the threat, the time is way too late to learn for the first time about the law of imperfect self-defense.
Good post. This fits in to some thoughts I've been chewing on concerning tactics vs. strategy in criminal defense. How can you have a strategy for winning the battle if you don't know what sort of ground it'll be fought on?
You know, you don't have to let spammers use your comment section to make money.
By the way, Moshe, in your career you will learn thousands of things that make you ask how anyone could practice without that basic knowledge. Resign yourself to it.
I don't know how to deal with spammers. In 2005 I thought I was the shit cause I had word verification. I don't know how good I would be at comment moderation.
There have been lots of things that have given me pause throughout my career. For some reason, I continue to be shocked at piss poor lawyering. I coached my law school's trial tactics team for a while, now THAT is something that should be required. Learn where to sit and what to say.