http://nelawyer.blogspot.com/2008/08/secret-to-winning.html

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.

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.

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.

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.