Practical Trial Considerations

First off--sorry about the lapse in posting. The end of the year just sneaked up on me.

Now, on to practical considerations when heading to trial. No, this won't be esoteric--very down to earth. First of all, you should have a small box, which I labeled "Trial Kit", already packed and sitting in your office. This will contain those items that you sometimes wish you had brought, but were not important enough in the scheme of things to make it to your master trial prep list.

You can obtain the box from a drug store or some such place. Mine contains the following items.

Personal items--Shout wipes, for those inadvertent spills and stains. I also have a Tide pen for the same reason. You do not want the jury focusing on that splotch on your clothing, and you don't want to be obsessing on it, either. Likewise, I have a little needle and thread packet, (obtained as a giveaway at a trade show or Bar convention) with buttons, and other repair items.

Computer help-- I have a couple of lens cloths for cleaning the laptop screen. (These can also, of course, work on glasses.) I also carry a USB thumb drive, for sharing information with co-counsel or getting something printed on a handy printer.

Client care-- First and foremost, a box of Altoids. I do a fair amount of criminal work, and some of these guys, particularly the ones who don't make bail, are a little careless with their personal hygiene. You are going to be talking with them in close quarters some, and you don't need the distraction of holding your breath. Sometimes these can be useful for co-counsel, too. And, of course, take one or two for yourself--you never know. Loose change for a drink can be a lifesaver, either for the client or you during breaks, so I have some in my kit. Further, I carry a fairly big Post-It Note pad for passing notes back and forth with my client. I find I can read and listen, but have trouble listening and listening. I need to hear the witness or the Judge, and I need to know what my client wants me to know. Likewise, I place a spare pen in my kit.

Trial care-- I think I am prepared for exhibits and cross, but just in case, I have a spare highlighter for emphasizing things, along with a Sharpie permanent marker. The highlighter, picked up again at a Bar Convention, is a triangular job with three colors and is all of 2 1/2 inches across. Perfect for my little kit. If something runs out of ink, I have a spare handy. I also have a spare pair of reading glasses in my kit, for anyone, including me, that may need some. Remember, you are the guide at trial, and you want the jury to know that you are the one to trust. Helping people see what they are talking about builds your credibility and likability.

I was also lucky enough to obtain a small NITA Federal Rules of Evidence book when I attended the National Institute for Trial Advocacy course. This is very handy to have when the Judge strays into an unexpected sidebar on these rules. You can order this online.

That's it. Small and effective, I don't have to sweat the small stuff, because I have the small stuff covered. Why is this important? I think that most trial lawyers have a degree of obsessiveness built in. Following the Boy Scout motto of "Be Prepared", I won't stray from my main purpose and I will come across to the jury as the lawyer who they can trust because he is prepared.

Don't Plead Guilty if You Don't Mean It

Sometime back, I represented a bright and articulate young man who was, unfortunately, involved in the illicit and illegal drug trade. On this particular occasion, he was one of several individuals around whom a wide net had been cast. The heart of the government's case was the detailed and knowledgeable testimony of a snitch. This man named not only my client, but several others, gave details about the amount of marijuana that was being sold and distributed, dates, and the location of the sale from the larger distributor.

The young man and I discussed the strengths and weaknesses of his case, and the possibility of taking a plea bargain on the case. He was reluctant to do so, since he professed his total innocence in this matter. However, being in the drug business, he knew that going to prison was a "cost of doing business" and seemed resigned to the fact that he would have to plead so he could shave some time off his term in jail.

He always professed his innocence in this matter. He was very honest with me, and indicated that he was in fact involved in the drug trade, and had made several purchases, sales, etc. over the course of the past few years. However, he was adamant about not having participated in any of the particulartransactions the snitch attributed to him.

In federal court, when you want to accept a guilty plea, you go before a federal judge at a change of plea hearing. At that time, the judge goes through all the rights that you will be forfeiting in the event you plead guilty, the effect of the recommendation of the United States Attorney's office, and whether you are in fact guilty of the crime to which you're pleading. It's a tedious process, but necessary in order to protect the rights of the accused, and to make sure that, hopefully, a guilty person is not going to be sentenced for a crime he or she did not commit.

In any event, we were halfway through this give-and-take when my client pulls me aside. I requested a moment's conference with my client from the judge, who was not too pleased with this, but nonetheless, of course, let me confer with my client. The bottom line on that conference was he told me he could not plead guilty to something he did not do. He was willing to take his chances at trial. He was, in his own way, a man of conviction.

I announced to the judge that we were not going to change our plea after all and would go to trial in this matter. Since the trial date was already set, and several others were going to trial, we proceeded apace towards that fateful date.

We were ready to go to trial, armed with jury instructions, and cross examination questions for the snitch and any other possible witnesses, such as federal agents, etc.. Then, about two days before the trial, the real story came out.

It turns out to the snitch, in order to help with his own sentence on other charges, had concocted a beautifully crafted story about these various individuals and the drug purchases that they had made at a known drug distributor's house. Since these individuals were in fact involved in the drug trade, and this fact was known to the FBI and other federal authorities, such as the DEA, the story seemed very plausible to people who wanted to arrest drug dealers and take them off the streets. However, it was entirely made up. A good lie always has elements of truth in it, and this individual had named the right people and testified at the grand jury about their evil deeds.

After his change of story and the clearing of his conscience, the charges were dropped against my client and the others. The snitch faced new charges regarding lying to the grand jury, et cetera. I would like to tell you that my client walked out of court a free man, but that was not the case. He basically walked across the street and faced the music on state charges about a different drug matter, for which he was actually guilty. However, he was willing to accept this, in the end, as a cost of doing business in the drug trade. He actually felt very good about having the federal criminal charges dropped since they were in fact bogus. The system worked, to some degree, for him.

The moral of the story: sometimes, when your criminal clients tell you that they are innocent, they really are. Most of the time, they only keep to that story for the first two or three times and then admit to being guilty of the actual charges. It always helps when they know that their criminal trial lawyer is ready willing and able to take the matter trial.