Criminal Trials – fiction vs reality

Television programs and movies portraying trial lawyers at work invariably focus on the most entertaining aspect of trial advocacy. They condense into one or two hours the work of the trial lawyer before a Judge or a Judge and jury confronting a witness or presenting an interesting, witty, insightful argument. They tend to focus much less attention on the tedious and demanding preparation required to conduct a skillful crossexamination or a persuasive argument. But, the foundation of every effective cross-examination or oral presentation is thorough preparation- preparation that includes thinking and re-thinking the best methods and best words to use for the specific case.

Understandably, much of the hard work leading to good advocacy is less glamorous and therefore less likely to be the subject matter of the entertainment industry. Good trial lawyers know that they must develop a plan that is unique to each case they are called upon to try. The plan must take into account all important features of the case, yet be flexible enough to meet the inevitable changes that arise in the ever-changing landscape of trials. It is the dynamic nature of trial work that interests most trial lawyers. It not only attracts them to trial work but often leads them to reject appellate work.

The ebb and flow of the trial is often unnerving to those that prefer a more stable, predictable environment. An appellate lawyer may be compared to a forensic pathologist. When the forensic pathologist cuts into the body of a deceased person, no blood spurts from the body because the heart is no longer pumping blood under pressure through the body. Life is over and what has occurred is not going to change. This is like the transcripts of a trial used to argue points of law on appeal. While under appeal, whatever was said or done during the trial is not going to change.

Trial work on the other hand is an ongoing dynamic process. Disclosure might suggest what a witness is likely to say, but no “will say” statement of any witness can necessarily be counted on as a safe prediction of what they will say under questioning while in the witness stand. Things often change. To use the analogy, blood is still pumping. The wrong question at the wrong time may cause blood to spurt all over the courtroom or on the examiner in a way that could not be predicted. It is this uncertainty that attracts a skillful trial lawyer. It demands the ability to be able to think on the go, to adapt and survive the unpredictable twists and turns of the evidence. The best of the best face the uncertainty with a stoic, apparently unconcerned demeanour and an air of confidence that reflects this attitude– any new questions raised by this evidence will be answered promptly and effectively. Thus, confidence in the position taken by the advocate never wanes. The demeanour and attitude of the advocate continues to inspire confidence in the trier-of-fact that the necessary answers will be provided.

This winning approach to advocacy may seem out of reach to those beginning practice as a trial lawyer. Inexperienced lawyers may be concerned that only extensive experience at the bar could produce this confident attitude, this implacable and undaunted spirit. However, the most significant equalizer for those not yet experienced at trial work is preparation. The inexperienced trial lawyer should think of preparation as their closest connection to trial experience. Consequently, counsel’s preparation should include reviewing all aspects of the upcoming trial with a mentor, a person experienced in trial presentations. If the inexperienced trial lawyer is unable to secure an opinion from a more experienced trial lawyer, then books and articles may assist in this aspect of preparation.

Confidence should come to inexperienced trial counsel from knowledge that thorough preparation is able to overcome inexperience. Cases are won and lost on the facts of a case. If the right facts, coupled with the correct interpretation of applicable law are presented to the court, rarely will a Judge or jury hold against inexperienced counsel any deficiencies in their presentation. The hard work of thorough preparation is the great equalizer. Preparation alone, however, is not the full answer. It requires the correct type of preparation. That can only take place with an effective plan. I like to refer to this as a “game plan.” While the trial is not a game, the analogy is apt.
Successful coaches in sport prepare their players in accordance with the skills or weaknesses of their next opponent. A game plan is necessary.


2022 Criminal Trial Strategies - Patrick J Ducharme

The above is the an excerpt of Patrick J Ducharme’s book, Criminal Trial Strategies, available at Amazon or in bulk through MedicaLegal Publishing.

Read or listen to the Preface and Introduction and subscribe to Patrick Ducharme’s Youtube Channel.