I recently had the opportunity to visit one of my clients in jail so that we could review the discovery in his or her case. This particular person was nearly too embarrassed to even look at the discovery (the State’s proof) because some of it could have been viewed as graphic or offensive in nature. However, my client quickly relaxed and saw that going through the discovery is not a “what were you thinking” session, not a “they’ve really got you now” session, not a “take the offer immediately or I’m off the case” session, or anything similar.
You see, I don’t treat my clients like patients going to the dentist and getting scolded for not flossing regularly. I look at the case like a trial lawyer – meticulously analyzing the various ways in which the trial could occur.
Before even meeting with a client, I look at the discovery beforehand and visualize the case as applied to the rules of Criminal Procedure and Evidence. When I meet with my client, I then begin by telling him or her to picture walking into the courtroom and sitting beside me. I explain where everyone would be located in the court room, in what order the trial would occur, and what testimony can likely be expected from each witness.
I explain how each piece of evidence in the discovery could be used to try to show specific elements of the offenses charged, how the pieces interact, what rule of evidence would possibly allow it to be introduced (or why I believed we could make an argument barring its admission), and what defenses and witnesses we could present to refute these allegations and the related evidence. I explain how the prosecutor will challenge our facts and how we will counter the prosecutor’s facts.
I explain the best arguments for both sides. I talk about how juries operate – what decisions they can make, what factors they commonly rely on, and what attitudes and beliefs a favorable jury would likely have in this case. I talk about jury instructions, the burden of proof, the standard of proof, affirmative defenses, and lesser included offenses. I suggest possible themes and labels to use in the case, what steps will be needed to ensure that we have the proof that we need, and what a likely timeline would be to ensure that we are prepared before the trial date.
Only after the client and I have discussed these topics, I talk about the State’s offer. In this way, my client does not think that I only want him or her to take the plea. I make it clear that my client is free to take the offer or not take the offer. I am honest when I discuss the likelihood of winning the trial versus the potential range of punishment if we lose at trial. I ask my client to tell me how he or she would vote if they were selected for the jury and heard the proof and the arguments that I have just presented. Then, without accepting any gut decision, I leave and give the client time to reflect on the decision, and encourage my client to discuss the choices with his or her family. If his or her family wants to meet to discuss it me, I will talk about it with them with my client’s prior permission.
This is the only way to give a client the understanding of what his or her chances are. First, we have to be able to look at the discovery in a meeting completely free of second-guessing, blaming, or accusations. Second, the client needs to be able to visualize how the pieces fit together. Third, the client needs time to think about the decision and talk it over with others who care about him or her. If the case progresses to trial, I will certainly have many more prep sessions.
Why don’t some attorneys do all of this? The short answer is that some simply do not have the time, the patience, or the knowledge. Often, they have not reviewed the discovery before visiting the client, so there has been zero preparation. Maybe they have too many cases or do not feel that they were adequate compensated to provide such a service.
What you will find, however, is that nothing pleases trial lawyers more than talking about trials – how it might go, how one piece of evidence changes the argument, how one argument will be parried by a subsequent piece of evidence. We like to imagine impeaching a witness with previous testimony, or by exposing the witness as having a character trait for untruthfulness, i.e., being a big fat liar. If you are considering a lawyer that does not enjoy engaging in such a discussion, then they have either lost their ‘fire in the gut’ for trials or perhaps never had it.
If you are serious about arming yourself with the tools necessary to make an informed decision such as this for yourself or a loved one, please pick up the phone and give me a call.
