The secret to winning: Gideon-style (updated with links!)
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A while back, Scott the Greenfield ragged on Gerry Spence for offering some “sage” advice about winning: credibility and lack of thinking (It’s not as stupid as the Greenfield makes it sound, but I see his point).
So that got me thinking (uh-oh, I’m losing already): Can I offer anything here? Will anyone listen? Now, I’ve never won a motion hearing, let alone a case, so admittedly I’m on thin ground. But this being the internets, nothing’s stopping me from writing and you from moving on to the next website, so I’ll give it a shot and make it a meme.
Gideon’s secret to winning: Knowing your rear from your face, or, preparation.
I mean, really, that’s your only shot. Know the State’s case inside out. Know the allegations, the witnesses, the police reports, the statute and your theory of defense. You have to prepare, prepare, prepare.
Okay, see, that’s boring. So I’m going to invite my more enlightened blawger brethren to jump in and offer their definitely more exciting and sage advice (but if any one of you says something like “good facts”, you’re automatically sentenced to an internship with the former Judge Cassell).
I link to three blawgers, who post their own secrets to winning and then link to three others. I’ll collect all the posts here.
So, I will tag:
The Texas Tornado, and
Posts written by them (or others) will be collected below:
- Winning your case, South Carolina blog
- The Secret to Winning Meme, Simple Justice
- The Secret to Winning: Bennett-style
- The Secret to Winning: Hostis Civitas
- The Secret to Winning: Underdog-style
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Dear Gideon,
That’s the best advice on winning I’ve heard in a long time. Actually, are you really describing how to represent your clients well, whatever the facts?
What do you mean by winning? Is it a single event in any given case, or do your clients always win when their lawyer takes your approach to preparation? Gideon, you sound like a winner to this seasoned and “prepared” lawyer. Your forum and support of our work is a wonderful gift.
If you see fit, you could add to your preparation list, know your rules of professional conduct, forensic sciences, toxicology, fornsic pathology, DSM (mental/psychogical illness) neuro-cognitive impariments, etc…
When Gerry Spence is not dispensing sage advice, he lives by what he teaches at Trial Lawyer’s school: to listen, to empathize and to learn from others. Could someone who does not have these skills be a “winner” everyday with every client?
Keep up the good work brother! The wins will come.
MJI (sounds like a secret agent, btw), what is “winning” is a great question. I’ve always viewed it as doing the best for your client and getting the best possible disposition. It doesn’t always mean an acquittal. Winning could also be interpreted as protecting the Constitution and holding the State to its burden of proof. If the State can legally and fairly prove that the client is guilty, then so be it, but it is our job to make sure that they do so.
Your take on “winning” is also interesting and I think I like it. Doing the best you can, which would include thorough preparation and informed advice would be a win for the client, because it would give the client all the information he/she needs to make a life-altering decision. We owe it to them.
Going pro se insures coincil has a vested interest in the outcome of clients case. Don’t give me that fool for a client rhetoric. I’ve never accepted money from myself and then failed to return my calls. And preparation doesn’t help when you are ambushed. Maybe their is still frontier justice down here in Texas. It happens daily…. defence council seems OK with it. Judges are on board with it. Why not lynch people at arraignment. Or better yet fire warning shots at the time of arrest. One to the chest and one to the back of the head.
I work in appeals, so I only see failed cases. But pro-se is generally a route to disaster, particularly for the incarcerated client who has limited access to law books and forms and limited ability to contact witnesses and investigators.
If you do have access to the community, even the most green young lawyer has more familiarity with legal research and can winnow thru material to find useful answers.
That vested interest is a mixed-blessing. It can blind one to legal and procedural issues that can win a case because the litigant is so focused on the facts (showing a witness is lying, for example) that one misses the evidentiary rule to keep the liar off the stand.
I work in appeals, so I can only offer thoughts about cases that failed.
Assume nothing, particularly with forensics and state’s experts. I’ve had transcripts where state’s witnesses made all sorts of assertions that were demonstrably wrong based on the treatises in their field, and were unchallenged because the defense attorney didn’t know that, FREX,
Yes, you can get fingerprints from surfaces after they have been rained on, by not looking the state’s crime scene guy may have missed key exculpatory evidence.
Yes, you can get fingerprints from firearms and ammo — Boston PD is reporting an over 10% success rate at doing so. Again, if the crime scene guy didn’t look he may have missed exculpatory evidence.
No, hollow-point bullets aren’t “flesh-ripping killer bullets” — they are the ammunition type most commonly issued to law enforcement for a variety of reasons. Had defense counsel asked the state police firearms expert what ammo was issued to his own agency, the expert would have had to admit it was the same as used by the defendant.
No, you can’t “age” fingerprints — all the expert can say is that they were made sometime after the surface was last cleaned.
No, the indelible memory argument (crime victim’s memory is like juror’s memories for JFK assassination, or 911) is scientifically wrong — memory doesn’t work that way.
Look to see what’s going on in neighboring states. For CT — Mass has some great jury instructions on failure to record custodial interrogations, good faith mistakes in eyewitness ID, adverse inference from improper investigations, etc. For MA — CT has a nifty instruction on eyewitness ID procedures. I know it is hard just to keep up with one’s own state, but making some contacts cross-border can give you lots of neat ideas.
Also, there have been lots of instances of forensic fraud (so far none known in CT) where police have fabricated evidence — look hard at the evidence and the documentation to make sure it actually came from the crime scene.
I got tagged by Greenfield. The link is at my name or below. How’s it feel to start a wave?
http://nelawyer.blogspot.com/2008/08/secret-to-winning.html