Ineffective trial counsel may unnecessarily complicate the facts of a trial by attempting to focus on every minute detail. Effective trial counsel, instead, understand the overall case in a way that permits counsel to focus on only the most important facts. This amounts to seeing the proverbial forest, despite its number of trees. The big picture is, in fact, the overall picture. It requires the development of an overall theory of one’s case. It amounts to your client’s story. Reduced to its most basic element, trial advocacy is the ability to effectively tell your client’s story. The story should lead to the ability to say at the end of the trial, “If you accept this version of events, then you must decide in our favour.” When the story is complete, when all the evidence has been heard, the end result should be victory.
How does trial counsel go about planning an effective trial? It starts with the preparation of a ‘trial brief’. The word “brief” is used for a reason. The trial brief is not a collection of every piece of paper disclosed or discovered during thorough preparation. It is instead a handy and accessible collection of materials and information that counsel will need at hand in order to conduct the trial effectively. At minimum, it will contain: the information or indictment; the “will say” statements of all important, relevant witnesses; multiple copies of all important documents, photographs and potential exhibits. It will also contain relevant statutory and case law. It will permit counsel to quickly access the information and documents that will be needed in examination and cross examination of the witnesses. The multiple copies of any documents to be presented will ensure that counsel will be able to provide copies to the Judge, jury members, prosecutor and clerk of the court for filing as an exhibit on the trial.1
The game plan, effectively embodied in a trial brief will stand as a constant reminder to counsel that every question asked, every suggestion put to a witness in cross-examination and every argument during the trial will fit with and complement the overall game plan. The goal is that at the end of the trial, although the evidence is presented witness by witness in piecemeal fashion, the finished product is a cogent, effective story that persuades a Judge or jury to accept it and rely upon it for its decision. The game plan fuels and supports the questions asked in examination-in-chief, cross-examination and re-examination just as it fuels and supports the legal arguments, final submissions and jury addresses.
1 Documents include any photographs and paper exhibits, excluding, of course, case law authority for distribution to the presiding Judge and the opposing counsel only.
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.