Chapter 2 PREPARING FOR TRIAL - Indiana University …

1 Chapter 2 PREPARING FOR TRIAL INTRODUCTIONP reparation is the key to successful TRIAL practice. Contrary to what you maysee on television, no part of trying a case is extemporaneous. From openingstatement, to cross-examination, to the objections you make, to your impas-sioned closing argument attacking the credibility of an adverse witness,everything you do and say in the courtroom is planned in advance. Any lawyerwho tells you differently is simply justifying his or her own these introductory words from BYRON & WILLIAM ELLIOTT, THEWORK OF THE ADVOCATE 3 4 (1888):Preparation is the foundation of success in advocacy. Neither geniusnor talent, neither tact nor cunning, can equip an advocate to try acause as it is the duty of advocates to try causes, without a foundationwell laid by thorough and complete preparation.

2 The first step is toacquire a knowledge of the facts. It is not enough to obtain a knowledgeof them in outline; they must be known in their breadth and depthand in their relation to each other and to the ruling principles of less thorough will not enable an advocate to acquit himselfwith credit nor will it enable him to do his duty to his client. Cicerosays: What Socrates used to say, that all men are sufficiently eloquentin that which they understand, is very plausible but not true. It wouldhave been nearer the truth to say that no man can be eloquent on asubject that he does not understand. No man can be strong wherehis knowledge of his subject is feeble. Preparation alone supplies theknowledge which makes TRIAL lawyers strong.

3 Biographers of advo-cates, like biographers of military heroes, sometimes take up the penof the romancer, and, to magnify the man of whom they write, inventpleasant fictions. It is to this class of biographers that legal literatureowes many stories of verdicts won, as they say, by a flash of wit ora torrent of eloquence. There is more of rhetorical flourish than ofsober truth in these stories. For the most part, legal controversies arenot fields for display, but fields for hard work. The advocate cannottoo strongly lay it to heart that preparation is absolutely essential tosuccess. Speeches that are lauded as remarkable examples of extempo-raneous speaking are almost always found, when the truth is known,to be the result of careful and laborious cornerstone of preparation is the development of a theory of the case theory is your view of the best realistically possible interpretation ofthe facts and law.

4 What do you think really happened, given the evidence andcommon sense? What is your best legal ground? In what areas is your casestrong, and where is it weak? How would a verdict for your client advancethe cause of justice? Not until after you develop a theory are you ready to plan43 0001 VERSACOMP ( ) COMPOSE2 ( )08/01/02 (09:20) The TRIAL Process: Law, Tactics and EthicsJ:\VRS\DAT\03106\ --- --- POST1 any other part of your case . You will have to make decisions concerning whichwitnesses to call, what questions to ask, whether to introduce particularexhibits, and what arguments to make. You cannot expect to make sensibledecisions about how best to try your case until after you have a clear overalltheory of the Chapter covers a range of issues that fall into the general concept ofstructuring your TRIAL as a whole and getting ready for TRIAL .

5 CInterviewing witnesses and fact a case and analyzing your evidence, and planning how you willfill in the a general TRIAL strategy concerning such issues as the orderof proof, the main points to emphasize, and selecting a and ordering your TRIAL briefs, filing motions, attending the pretrial confer-ence, requesting jury instructions, and other pretrial a TRIAL important thing to remember throughout this Chapter and throughoutyour TRIAL preparation: the best way to prepare is to write it down. Factsgathered will be forgotten if not recorded; ideas may dissipate if not writtenout; clever arguments may prove harder to actually write out than youthought.

6 A TRIAL is like a book, consisting of characters, a conflict, a plot, anda dramatic TRIAL scene. The true labor in preparation consists of writing andrewriting the book until all the pieces fit together in an intelligent andplausible whole. This is a time-consuming process, but it is the closest thingthere is to a guarantee of a successful TRIAL . THE DUTY TO PREPAREP reparation is not only a good idea tactically, it is legally and ethicallyrequired. Rule of Professional Conduct provides:A lawyer shall provide competent representation to a client. Compe-tent representation requires the legal knowledge, skill, thoroughnessand preparation reasonably necessary for the Commentary explains:Competent handling of a particular matter includes inquiry into andanalysis of the factual and legal elements of the problem, and use ofmethods and procedures meeting the standard of competent practi-tioners.

7 It also includes adequate representation includes both investigation and preparation.[U]nless the lawyer is prepared in a given case , the client will preparation or attention to the details of the matter, both tothe law and facts, is mandatory. [Adequate preparation] encompassesknowledge of the current law on the subject, ascertainment of the facts44 PREPARING FOR TRIALCH. 2 0002 VERSACOMP ( ) COMPOSE2 ( )08/01/02 (09:20) The TRIAL Process: Law, Tactics and EthicsJ:\VRS\DAT\03106\ --- --- POST17 1/1 from the client, independent investigation, and employment of neces-sary discovery proceedings after a suit is started.. The attorneymust .. make an adequate investigation of the facts, both as theyare favorable and unfavorable to the Failure to prepare adequately for TRIAL constitutes ineffective assistance ofcounsel and can lead to disciplinary action.

8 Consider the court s opinion inShack v. State, 231 36 (Ind. 1967), reversing a conviction based on thedefense attorney s inadequate preparation:Mr. Nedeff [the defense attorney] devoted approximately eighteen(18) hours to the preparation of the defense of Mr. Shack. [He] didnot [search for witnesses or ] request any instructions on behalf of from the TRIAL Court.. Vanderman Shack did not havecompetent counsel in his TRIAL nor did he have an adequate can decide as a matter of law that Mr. Nedeff did not makeadequate preparation when he expended only eighteen (18) hours infactual investigation, legal research, inquiry concerning sanity, andall of the other facets of inquiry properly to be disposed of by anattorney in the preparation of a felony as serious as Murder in theFirst Degree.

9 This is particularly true since Mr. Nedeff had never trieda homicide case . This would probably be true even with one of the legalgiants of TRIAL practice; but, a seasoned TRIAL lawyer would deem itunthinkable to go to TRIAL with only eighteen (18) hours of would deem it malpractice not to seek a psychiatric examinationof his client in order to determine whether or not a plea of insanitywould be interposed. A mature practitioner who had tried many caseswould spend several times eighteen (18) hours in legal research alonein order to properly prepare, for the Court s consideration, tenderedinstructions touching on the various elements of is the concern of the bar of this State and this Court, which fixesthe standard of competency, to have to set aside a conviction becauseof incompetency of a member of the bar representing a defendant ina criminal case .

10 I therefore feel the competency of the attorneyinvolved in this case should be referred to the Disciplinary Commis-sion for investigation and report as to whether or not disbarmentproceedings or other disciplinary action should be Standard Relating to the Administration of Criminal Justice 4 (a) provides:Defense counsel should conduct a prompt investigation of the circum-stances of the case and to explore all avenues leading to facts relevantto the merits of the case and the penalty in the event of investigation should include efforts to secure information in thepossession of the prosecution and law enforcement authorities. Theduty to investigate exists regardless of the accused s admissions orstatements to defense counsel of facts constituting guilt or the ac-cused s stated desire to plead Lee Gaudineer, Ethics and Malpractice, 26 DRAKE L.