How to Prepare for Trial: Step Three

(Step one was here, step two was here.)

Perhaps I got a little carried away at the end of step two, when I wrote that the next step would be to formulate the opening argument, the cross-examination and so forth.

Before you can do that, you need to put some serious thought into your theory of the case: What are you trying to convince the jury of? Are you conceding it happened, but it wasn't your client that did it? Are you saying it never happened? Are you convincing the jury that someone is lying or mistaken? And if so, who?

I think the biggest mess a defense attorney can get themselves into is not knowing their theory of the case.

If your goal is to prove, for example, that the victim lied and she wasn't robbed, your line of questions will be different if your goal is prove that the victim was robbed but she picked the wrong guy out of the lineup. (You can simplify this as the difference between "whodunit" and "what happened.")

Once you have a theory of the case, you want to imprint that into your mind and let it control every question you ask.

In the bank robbery case that I used as an earlier example, I probably can't deny that the bank was robbed. So my defense probably has to be that the bank was robbed, but my client didn't do. The details would probably depend on how many people witnessed it, whether my client was wearing some kind of disguise, and whether my client made any confession.

Sometimes it's hard to have a theory of the case. If your client was seen in broad daylight by ten witnesses, all of whom are credible, and he was caught on video which is clear and not grainy, and he made a full confession, and he was caught with the stolen money in a bag with dollar signs painted on it, just like in old movies... you may be walking into your trial without much of a defense, just hoping that something good will break your way. Sometimes you're going to trial on only the unlikely possibility that the prosecutor forgets to ask a key question, the witness suddenly forgets something while testifying and the video won't play. It happens, but keep in mind that your defense is pretty open ended (you're just hoping for anything good to happen) and therefore, your opening argument, for example, should be equally open to possibility (e.g. don't box yourself in by saying, "Yes, my client did it, but he was desperate..." if there's any possibility that he won't be identified, because your summation will be, "Yes, I know I said he did it, but obviously he didn't...")

The theory of your case is going to shape everything else from here on out. In the voir dire for the bank robbery case, I want to ask the potential jurors questions about identity and misidentification. Likewise, in my opening argument, I'm going to say things like "That's not my client on the video," not "The bank wasn't robbed."

With your theory of the case figured out, you can almost see your summation forming. And, in fact, some lawyers start by writing their summation. I don't literally write mine out, but it's useful to at least think about. In formulating your summation, you start to see what points you want to make with each witness, which will help you write your questions. In the bank robbery example, I might imagine saying my summation, "Ladies and gentlemen of the jury, the teller told you that she only had one second to see the robber. She told you that he had a mask over his face and she couldn't see his face at all. She couldn't see his hair at all. She couldn't see his skin tone. She wasn't sure how tall he was. She didn't hear his voice..." You start to get a sense of the questions I'll need to ask the teller to elicit this information.

One thing that I've often been asked is whether I write out my questions, or work off notes or an outline. It depends on the witness, but generally I write everything out.

When don't I write anything? When it's going to be quick, simple and painless. Maybe the prosecutor is putting this witness on the stand to get one fact into the record, and it's a fact that I don't dispute. So, maybe I won't ask anything. Keeping my theory of the case in mind, maybe I want to get one additional fact out of this witness, I can probably get away without writing anything out.

Sometimes I just don't know what the witness is going to say, and therefore, I don't have much to write out. It's a skill to be able to think on your feet, and figure out what you want to ask on cross-examination before you start to look silly standing there, stalling.

Why do I write out my questions the rest of the time?

First, it helps me to remember to get out all of the information I need from each witness.

Second, it reminds me to use leading questions on cross-examination and to ask good open questions on direct examination.

Third, to set a witness up for impeachment, based on a prior statement, it is best to use the language from their original statement. I write out my question, using the language that the witness used in their prior statement, and then I make a note to myself where to find their prior statement (e.g. "You only saw the person demanding the money for one second. (hearing transcript, page 30, line 5)")

Going back to the binder and redweld camps, I make sure I have my questions and arguments printed and filed in each folder or divider, along with any impeachment material, exhibits I want to show the witness, or items I might use to reflect his recollection.

I hope this was helpful, I've tried to be vague without being too vague, give examples without being too elementary. If you have any questions or ideas, I'd love to hear them. Coming up in Step Four: Thinking About Logistics.

Black & Decker B1500 Manual

Please don't think Blonde Justice has been hijacked. I promise to return soon with more on how to prep a trial.

But I need to go off-topic for just a moment. I recently inherited a Black & Decker B1500 Bread Machine. In looking through bread machine cookbooks, I found that most of them give a list of ingredients, and then tell you to add them to the machine as per your machine's manual. One problem: I didn't have the manual. I figured, "no problem," as I set off to google it. Instead of finding it, I found a whole bunch of websites of people looking for the B1500 manual.

I finally got the manual and have it scanned as a PDF. I figured I'd do my public service and make it available, and because this is my only public forum on the internet, I'm doing it here, however off-topic it may seem.

If you want me to email you PDF, please send me an email at blondejustice at gmail dot com.

Keywords (to make this more easily found on the internet): Black & Decker, Black and Decker, bread machine, bread maker, breadmaker, B1500, model B1500, B-1500, bread, manual, instructions, operating instructions, all in one automatic breadmaker.

Thanks, now back to the quirky legal goodness...

How to Prepare For Trial: Step Two

(continued from Step One, here)

Now is the time to decide whether you are going to be a trial notebook (a.k.a. binder) lawyer, or a trial file (a.k.a. redweld) lawyer. Part of this is going to depend on what you were taught or what is the predominant culture in your office - I've worked in an office that didn't stock redwelds because everyone was into binders and I've worked in an office that didn't stock binders because everyone used redwelds.

I suppose there may be a third camp, but I haven't seen it yet. Actually, I've seen the technological camp, which includes uploading all of the documents, and making a file for each witness, even using a large monitor or projector to display documents and exhibits, but the courtrooms I've worked in haven't been properly equipped - ultimately I would still needed a paper copy of each document to show to a witness or to publish to the jury.

A few of the pros and cons of binders vs. redwelds. Pros of binders: Binders look neater. During trial, you walk up to the podium with this nice, organized looking binder, labeled "State v. Client" across the outside, and the jurors say, "Wow, she's got this trial organized." If you drop it, it all stays together. At the end of the trial, you could stick the binder onto your shelf, where it still looks neat, and have it to refer to whenever you have a similar case. Cons of binders: The need to hole-punch everything, or, in the alternative, wrestle with those plastic page holders. It's hard to neatly fit odd-sized papers into the binders, including legal size paper, or photographs, business cards, or cassette tapes, or little notes you've collected.

Pros of redwelds: If you come across any paper you might want to refer to, you just stick it in the folder, it doesn't matter the size, or whether you can hole punch it. It's easier to adapt during the trial, and you're not carrying a hole punch around. I also like that you can recycle the files later for future trials. For example, you could make a folder related to jury selection - keep all of your notes on jury selection, relevant case law, and blank jury box pages. Anytime you have a trial, you grab that jury selection folder and throw it into the front of your redweld. No hole punch needed, no need to slide those little divider tab labels into those little divider tab plastic things, and then they split and you have to start all over again if you want it to be neat. Cons: It looks a little messier, the redweld can split and make a big mess (I'm interested in trying the plastic/vinyl expanding folders they have now), or it can fall over and splay your papers all over the table. If you want to save it on your shelf, you have a big ugly redweld on your shelf (or taking up space in a filing cabinet) and they're not easily labeled.

I would recommend trying each one at least once, and see what you prefer. So far, I'm a believer in the redweld method. (If you've got another method, I'd love to hear it, leave it in the comments!)

Get together your materials: A redweld and folders; or a binder and dividers and those things you have slide into the dividers as labels, and a hole punch. Then make either a binder divider or a folder for each portion of the trial or witness. Using the example from Step One, I'd probably make these sections: Pre-trial motions, Jury Selection, Opening Arguments, Teller, Bank Manager, Police Officer at scene, Detective who takes defendant's statement, Defense Case, Defendant, Alibi witness, Character witness, Closing Arguments, Jury Instructions, and Exhibits.

I like to put my trial outline first, either as the first page of my binder, or at the very front of my redweld. Then put the dividers or folders into the binder or the redweld in the order you're likely to use them, using your trial outline as a reference. Now the trial outline becomes not only the outline of your trial, but also the table of contents of your binder or redweld.

Next, make a couple of copies of your entire file. Then go through all of those papers and ask yourself, "Who does this relate to?" In the bank robbery example I used earlier, let's assume that the teller had given a statement at the scene, which was written by Police Officer Smith and signed by the teller. I'd have at least two copies of that, and put one in the teller's folder and one in P.O. Smith's folder. Perhaps I'd even need four - if I want to have one clean copy to show to the witness and a second copy that might have my own notes or highlighting. If I had a diagram of the bank, I might want a copy for each witness who has been to the bank (the teller, the manager, and each police officer.)

There are some things you aren't not going to make copies of (e.g. cassette tapes or original photos). Just make a folder for them and stick them toward the back of the redweld or in the front pocket of your binder. I also like to have a folder for exhibits which will start out empty. Each time I move something into evidence, I will stick it back into that folder when I'm done publishing it to the jury. At the end of the trial, when the judge wants to send all of the exhibits back to the jury room, you'll see the disorganized prosecutor shuffling through his stack of papers and asking, "How many exhibits did I have?" while you neatly hand over your file labeled "Exhibits."

I also like to copy the charges against my client and the definition of each of the charges. Here it would probably be the laws describing robbery and grand larceny. Sometimes the charges are complicated (although here they aren't really) and I find it helps me keep me focused if I can clearly see exactly what the prosecutor has to prove. So I might make a folder labeled "charges" and include the indictment, the relevant case law or definitions from the penal code, and the model jury instructions.

In each folder, or between each of the dividers, I also like to throw a few blank pieces of paper, so I always have paper on hand in case an idea strikes.

In Step 3 you're going to start formulating the voir dire, opening argument, cross-examinations, etc., but I think that having your binder or redweld in shape first gives you a clear idea what you have to work with for each witness.