Now With Pronunciation Guide, Free!

After a long day of thinking and whatnot, today's post will attempt to answer one simple question. I hope this helps you, dear googler, where ever you may be....

What do you call the person the lawyer is defending? The defendant.

And, one more thing: I prefer the "di-FEN-duhnt" or "di-FEN-dihnt" pronunciations, and don't really like it when people pronounce it "di-fen-DANT," although that, too, is a proper pronunciation.

This search term, however, I cannot even begin to respond to:

How to Prepare For Trial: Step One

I suppose, to do it right, this will have to be a multi-post topic, spread over the next few weeks or months as it fits into my schedule of actual trial preparation.

Just a disclaimer: This is not the only way to prepare a trial, nor do I believe it's necessarily the best way. It just happens to be the way I was taught, and what seems to work for me.

Today's lesson is "Step One: Create an outline of the trial."

If you're the type of person who likes to type things out in a neat, organized outline, following actual outlining formatting (you know, I. then 1. then a. or whatever), fantastic, type it in Word or whatever you'd like

I like to write it on a blank piece of a paper. For some reason, I think that the more it looks like a flow chart with circles and arrows, etc., the more it's going to work. As if the level of activity on the page indicates the level of activity in my defense.

Either way, what you're doing is giving yourself an idea of what to expect in the trial.

A basic outline might look like this:

Pre-trial motions
Jury Selection
Opening Arguments
Prosecution Case
Defense Case
Closing Arguments
Jury Instructions

Then I go back through and just start brainstorming different ideas and filling them in under their respective headings. I think through all of the possible Prosecution Witnesses and list them under prosecution case, and all of the possible Defense Witnesses and list them under the defense case.

Next, I might fill in some ideas of questions, themes, or points I want to make with each witness. I'm not trying to write my whole direct examination or cross examination into the outline, but I'm asking myself, "What is my point in standing up and asking this witness a question? What do I want to get out of him or her?" and trying to fill that answer into the outline. I might also put some thought into any evidence I might want to introduce, and which witness I would introduce it through.

Invariably, during this process, I'll think of other things I need to do, whether they're investigation or research related. I'll just jot them in a box along the right margin. Again, the more doodling that gets done in my outline, the better.

Usually, by the time I'm beginning to prepare the trial, I've completed my investigation (although there is sometimes still more I can do) and I've sometimes put some thought into what my defense or theme is going to be. I might jot this under opening argument or closing argument, or both.

Finally, I might type my outline, if, for example, (1) I just need to feel a little more organized and my free-form outline has gotten out of hand, or (2) I want to give it to a colleague who will be working on the case with me, or (3) I want to give it to my client.

I think it's worthwhile to give a copy of the outline to my client as early in the trial prep process as possible - especially for the uninitiated client who doesn't have a clear sense of how the trial works, and even more so for a client who is in jail which may limit your time to talk and prepare the trial together. I find that, in the future, it redirects our conversations from "I didn't do it, I'm not taking a plea, I want to go to trial" to "Let's actually talk about the trial, here's what I think our major theme should be, here's what kind of jurors we're looking for, here's who I think the witnesses will be... " and so forth.

Just to give you a basic idea, I'll write up a quick outline from a trial training I did a while back. This is just off the top of my head, so it'll be a little rough. I've started with the most basic outline as above, and then I've filled it in a bit more with a few hypothetical ideas. The case involves a basic bank robbery. Again, this is hypothetical, and I'm not really prepping a bank robbery right now, so cut me some slack if you think I've missed something.

1. Pre-trial motions.
a. Preclusion of defendant's statement
b. Preclusion of "enhanced" video surveillance

2. Jury Selection
a. Eliminate customers of this bank
b. Eliminate jurors with security jobs?

3. Opening Arguments
a. Teller didn't get a good look
b. Bank video grainy
c. Defendant's "confession" coerced - hours of interrogation (mention only if statement not precluded.)
d. Defendant's home searched - money not found.

4. Prosecution Case
a. Teller (introduce diagram of bank if prosecutor doesn't)
b. Bank Manager
c. Police Officer at scene
d. Detective who takes defendant's statement

5. Defense Case
a. Defendant ???
b. Alibi witness
c. Character witness

6. Closing Arguments
a. Teller didn't get a good look
b. Statement was coerced
c. Defendant denies
d. Defendant was at the movies with his girlfriend
e. Money not found (Prosecution's burden to present evidence)

7. Jury Instructions
a. Basic jury instructions
b. Special jury instruction: Alibi Defense (if alibi witness used)

During the course of sketching out the outline, I might thoughts of things I still need to do, such as "Call character witness - set up appointment." "Go back to bank - distance from teller to door?" The longer this list becomes, the more work I have cut out for me, obviously.

That's all for today, class. We'll pick this up from here the next time I feel like writing about trial prep instead of actually doing it.

Here We Go Again

Right now, I'm prepping a trial. I am always prepping some trial.

I would say that maybe one percent of my cases go to trial. Maybe less. I can usually get a good sense, early on, which cases might possibly go to trial. A small percentage of those actually do.

I think that is a big skill that you "learn as you go" in a public defender's office. You can save a lot of time if you can learn to identify only those cases that might actually go, and triage your cases accordingly.

But even then, it's always uncertain, so you always have two options: (a) be cautious, prep everything, knowing you're probably wasting your time or (b) throw caution to the wind, and "wing it" if the trial actually starts. I choose option a.

Which means that I am always prepping some trial. So, this weekend, you'll find me on my couch, laptop on my lap, and cross-examination questions across the screen. Well, except when I'm stopping to write a little blog post.

Wish me luck!

Spreading Holiday Cheer

I had a professor in law school who also practiced law. (Those of you who haven't gone to law school are probably thinking this goes without saying, but in the weird world of law school, it's quite unusual, and in fact, some law professors have never even attempted to practice law.)

Anyway, I remember him going off on a tangent one day about rainmaking, networking, and ways of keeping in touch with clients to encourage them to think of you the next time that they, or someone that they know, need a lawyer.

One suggestion he made was sending Christmas cards to all of your former clients.

I remember just smirking, and thinking to myself, "Yet another way that so much of what they teach in law school doesn't apply to the public defender practice."

Although, as I wrote out my own Christmas cards tonight, I was thinking that maybe it would be nice to send Christmas cards to my clients that are in jail. I couldn't send cards to all of my clients, but considering I only have a handful that are in jail, and they probably need the Christmas cheer the most, it might be feasible.

Not for the purposes of rainmaking, of course. Just to be nice.

But, I don't know. I don't know if I could expect the cash-strapped public defender's office to pay the postage. And they wouldn't be in public defender envelopes, they'd be red Christmas card envelopes. And then I think we reach a weird line where I'm communicating with my clients outside of regular legal mail, in red envelopes no less, and it's only a slippery slope to the point where I'm marrying my clients. (Yes, I hear it has happened. But not to me, of course. I say no to all of the proposals.)

And then, finally, there's the rainmaking effect which is unwanted in public defender land. The clients, who had otherwise forgotten about me as an outlet for their looneyness and lonelyness, would suddenly remember me, and probably figure I have too much time on my hands since I have time to send Christmas cards, and then they'll start calling me to ask me things like how their "motion to squash" is coming along...

So, I think this year I'm going to have to skip the Christmas cards. To my clients, at least.

Misery Loves Company

I can't help but reflect sometimes, on how my life is different (read: better) this year than last year.

One surprise is how much being a public defender again has improved my friendships. I have more free time and energy, and I've made an effort to dedicate some of it to my friendships that were, unfortunately, neglected last year.

But, there is one friendship that has taken the opposite turn. I have been friends with this one girl on-and-off since elementary school. We'd lose touch for a few months or a year, maybe see each other once a year, usually for Christmas, and she'll email me a forward now and then.

I think part of the reason why we weren't close friends was because... how can I put this... I always felt worse, never better, after talking to her or spending time with her. I wrote about it on this blog once before, years ago, about one particular thing she said that made me unhappy or upset. But what I left out of that post was that it wasn't an isolated incident, that almost every interaction left me less happy than I had been when it began.

So, even before making the switch to the firm, I had decided that I didn't need to dedicate too much time to this friendship that made me feel bad. I've always felt that I don't have enough time for the friends that make me feel good, how could I waste time on a friendship that makes me feel bad?

Then, last year, while I was unhappy and depressed at the firm, I found myself drawing away from most of my friends. I wasn't happy and I didn't want to be a bummer to my friends. But, strangely, this one friend and I became closer. We spoke on the phone a lot more frequently and spent more time together.

Finally, now, I'm a public defender again, happy again. And I can't stand to talk to this friend any more. Suddenly it dawned on me: I could be friends with a downer when I was miserable. But now that I'm happy, I just can't wrap my head around it... How was I friends with her? Was I like her? Did I sound like that? I just couldn't handle it. I guess it goes to show, misery really does love company.

It's not that she's depressed, or sad, or a mopey downer. She's out-and-out hateful. It's hard for me to get into specifics without being specific, but she just has this way of saying something hateful, in a very casual way, as if she's just accidentally slipped it into a conversation. Imagine being friends with someone who continually mentions little embarassing things from junior high or arguments from your freshman year in high school. And maybe we've never moved beyond that because we don't have much in common anymore. She's been through a lot in her life, and it's become more and more obvious to me that she has some serious unresolved issues that she needs to work through, but she won't be able to do that merely by taking out her hostility on me.

And I understand that your friends are supposed to be there for you through good and bad, but I feel like I've only ever seen her through bad since maybe 1995. So I decided that, for my own mental health, I really needed to distance myself from that friendship. In the past few months I've been learning to make the decisions that are best for me, in terms of my own happiness, and that should apply not just to my professional life but also my personal life.

I didn't have a conversation with her, I didn't "break up" with her, I just decided that I wasn't going to call her, and when she called me, I'd keep it short. And there's never been any need for me to respond to her email forwards.

She didn't take it well. First she started sending me these weird passive-aggressive manipulative emails that said, "Lost: My friend. She has blonde hair. If you see her, could you please tell her that I miss her?" I'm sorry, I just don't think that kind of thing warrants a response. Honestly, I think if she had just sent a normal email like, "Hey, I've missed you lately, give me a call when you can chat," I really would've called her, I'm not heartless, I don't have it in me to be mean. But her emails were just weird. (And the weird emails never actually asked me to call her, just if I see myself, I'm supposed to tell myself that she misses me. Done.)

Then one day, a couple of weeks ago, I felt like crap and I stayed home from work sick for a day. I really just needed to take some Nyquil and sleep it off for a day. I had my phone next to my bed, just in case there was some emergency at work that I felt conscious enough to handle. She called as I was drifting off to sleep. I pushed ignore. She called again, I pushed ignore again. Every time I just started to get into a good nap, the phone rang again. I ended up putting the phone on silent. By the end of the day, she had called eight times, and she hadn't left a single message. And, again, I decided I wasn't going to call her back. If she had left a message that said, "It's me, call me back," I would've called her. Again, I'm not heartless.

But who calls someone eight times in a day? (Besides my stalker clients.) What is the point? If I wanted to talk, I would've answered. If you had something you had to say, you could've said it to my voicemail. But, what if I had been in court and accidentally left my phone on my desk (oops, I do that a lot), ringing obnoxiously all day long? What if I had been in court and my phone was vibrating all day? What if I was trying to conserve my battery power for some important reason? What if, worse, I was deathly sick and really needed some sleep? Oh wait, that is what happened. The worse she behaves, the more I feel like I absolutely should not reward her bad behavior with the response she wants.

Since that day, she's called a few times randomly, I've ignored it. Then she emailed a few of my friends. Not HER friends, mind you, not OUR mutual friends, but my friends. I guess she had their email addresses from things like when I sent a mass email for my birthday party or something. She wrote, "Can you check to make sure nothing terrible happened to Blonde Justice?" We've now entered actual stalker territory.

Finally, today I received a card from her. I'm thinking about putting it straight in the shredder without even opening it.

And I know it makes me sound like a bitch. You're thinking, "Hey, if the girl is dying to be your friend so bad, why can't you just give her a few minutes of attention?" And, yeah, I see that. But the further she goes, the less I feel like I could ever be friends with her. And can it be a real friendship if I'm only doing it to get a stalker off my back? And then how long do I have to put up with it before we're back here again?

So, give it to me. What do you think? Am I bitch? What would you do?

Because I'm "Quirky"

Although I'm happy just to be nominated, I'd love to get your vote and actually win for once. If there's anything I've learned this year, it's that a little hope can go a long way in a big election.

So, please go to the ABA Journal website and vote for Blonde Justice. It only takes a second, they don't ask any complicated questions, and you only need to vote once.

Just in case you're having problems with it, here's the link:

Thank you.