The Law Offices

I have to think that one of the most commonly wondered about questions that people have in their minds is "how does a lawyer win a criminal case?" For example, what is a legal strategy? What kind of preparation helps a case? What does it mean to be effective in court? What does "winning" mean? This article will illustrate my personal philosophy about winning cases. The following personal philosophy is not entirely my own. I have had excellent mentors who have "unlocked the secrets of winning." I have them to thank.

The first step to winning a criminal case begins the moment a potential client sits down for the initial consultation. When a case is fresh, it is vital to gather maximum information at the earliest possible time. No strategy can be formulated without all the facts. The earlier the lawyer knows the client's version of events, the sooner investigation plans and cross-examinations can be formulated. Thus, it is vitally important that the lawyer and the client establish a convivial rapport right away. As a general principle, a good lawyer should "get in front of the case" by hurriedly investigating and gathering facts at the earliest possible time. By gaining early insight into the fact pattern, the defense lawyer levels the playing field against the prosecution, and prevents the oft-encountered problem of having to switch strategies in the middle of the case. The good lawyer must define the case in simple terms, by creating a "theme of the case."

It is also vitally important for the lawyer to learn as much as possible about the client, the client's history, and his or her family, friends and colleagues. The more the lawyer knows about the client at this early stage of the case, the better the lawyer is equipped to devise a solution to help that client later. The client him or herself is part of the theme of the case.

The second step in winning a case is for the lawyer to develop a winning strategy. As noted above, a strategy cannot be considered reliable unless all the facts are available to the lawyer. Once all the facts are in, the attorney should scan the material to analyze the place "where the case breaks." The lawyer must sift through the evidence, all the while cross-referencing against evidentiary, constitutional and criminal law to determine if there is a point which contradicts logic or law. If the case cannot stand on its own without the arguably erroneous piece of evidence, then that is the place where the case breaks, and maximum effort should be spent to uncover, illustrate and announce that point. Such effort could consist either of fact finding and investigation, or legal research and motion drafting, or both.

A common example of a place where the case breaks is the "Motion to Suppress." Generally, in such motions, the defense attorney is trying to get the court to exclude the prosecution's key item of evidence, meaning that piece of evidence upon which the entire case rests. For example, in a drug possession case, evidence of drug possession would be suppressed (or excluded) from the case. When such motions are successful, the prosecution usually has no choice but to dismiss the case.

Another common example of a place where the case breaks is in one witness cases, or eye-witness cases. In such cases, it may be the lack of credibility of the witness that causes the case to break. Where that witness is a law enforcement officer, there are legal and factual tactics that may be employed in a winning strategy. One the legal side, motions and subpoenas may be filed with the goal of discovering the law enforcement officer's employment background and any complaints that may have been lodged against him/her. On the investigation side, crime-scene reconstruction may aid in learning how to discredit the eye-witness. Of course, investigations in to the witnesses history can turn up facts that cause the witness to seem like a less than honest person.

It is important to note that "strategy" does not necessarily mean "trial strategy." Not all cases should go to trial. There are those cases that don't break based on fact or law. For example, there may be a drug possession case where there is no defense, or where the evidence is overwhelming. In such cases, the lawyer can employ his or her knowledge of the court process and knowledge of the client's biographical data to soften the impact of a conviction, and/or to find alternatives to convictions or incarceration. The defense lawyer has a distinct advantage in this area, because the prosecutor will almost never have access to the defendant and cannot know what the defense lawyer knows about his or her client's life.

Also, some case stategies can be devised where the case breaks based on a pre-trial motion hearing, or based on aggressive advocacy that the prosecutor dismiss the case in light of the defense lawyer's presentation (either at an out of court informal conference, or an in-court formal pre-trial conference). Often this strategy envisions the possible acceptance of a pre-trial plea bargain, where the defense attorney tells the prosecutor which lesser charge or charges may be acceptable to the client, if any. However, if the lawyer analyzes that the case breaks entirely due to either factual logic or legal reasoning, then that point to drive the entire advocacy.

It follows from the definition of a strategy, "discovering the place where the case breaks, and uncovering, illustrating and announcing it," what would be correct preparation. Where the case breaks on a factual point, the proper preparation to employ is often investigatory and/or by consulting with experts in various fields. This is where lawyers consult with private investigators, medical experts, physicists, or any other person with knowledge about a field beyond common experience. Where the case is a trial case, it is vitally important at this juncture to prepare to cross-examine the witness or witnesses who may have the point that breaks the case.

Where the case breaks on a legal point, as in a "Motion to Suppress," proper preparation entails legal research and careful drafting of legal motions and oral arguments. Even when the point where the case breaks is factual or logical, motion work can be the cornerstone of success. There are innumerable types of legal pleadings that can be filed, and lawyers can even invent motions to file. Generally, the idea is that the lawyer is trying to get the judge to make a definitive ruling about an item of evidence. Either the lawyer wants the judge to exclude the evidence, limit how it may be used or talked about, hold that the evidence can only be viewed in a certain light or at a certain time. The reason the lawyer has for asking for the ruling can be direct, arcane or total subterfuge. Motion work is akin to "choosing the field of battle" in the analogy of warfare. Sometimes it's better to fight in the fog; sometimes it's better to fight from higher ground; sometimes it's better to ambush the flank or the ranks. Sometimes it's better to dig in prepare for the siege. Motion work provides this kind of power to a skilled criminal defense attorney. In fact, it's can be the difference between a skilled and unskilled criminal defense attorney, and is a point which the prospective client should inquire with the prospective attorney when making a decision about who to hire.

The third step in winning a criminal case is developing the in-court presentation. This is where I answer the question, "what does it mean to be effective in court?" Remember, not all cases are trial cases. Thus, not every in-court presentation is going to involve a scathing cross-examination. In fact, very very few cases involved cross-examinations, but all cases require a well-developed in-court presentation plan. One case may require aggressive advocacy to the judge to convince him or her that the client requires treatment not prison. Another case may require soft convincing of the prosecutor to amend the complaint and view the case in a different light. In other words, each case is unique, and a the lawyer must make judgment calls about when to talk like drill sergeant, and when to talk like a couple's therapist. The skilled criminal defense lawyer is able to modulate his or her presentation to fit the theme of the defense. The tone, tempo and content of the in-court presentation should be planned and executed deliberately. Most importantly, effective in-court presentation requires to the attorney to present suggested solutions to the court, rather than simply voicing concerns and gripes.

So what exactly does "winning" mean? Of course, a case is won when it is dismissed or when the jury says "not guilty." Less obvious, a case is won when the jury is deadlocked, because it means that the prosecution will have to regroup and prepare an alternative strategy. Often times, hung juries cause the prosecution to rethink whether the case is worth fighting. Another kind of "win" is where the desired result is achieved (and the result desired is other than dismissal, acquittal or hung jury). For example, where the client receives an order by the court to be admitted to a residential drug or alcohol treatment facility, or to receive the psychiatric assistance that he or she requires. A "win" could also mean that the charges are reduced; alternatively it could mean that the complaint is amended to an offense which does not implicate certain negative consequences, for example, the loss of a right or privilege (i.e., right to possess weapons or privilege to engage in a certain profession). What "winning" means is a thing defined first by the client and supplemented by the knowledge, experience and recommendations of the attorney.

Winning a case is a matter of doing four things: 1) gathering data, 2) planning a strategy, 3) preparing to execute it, and 4) effective presentation of the strategy. When each of these things is performed correctly by the attorney, the risk of loss should be exquisitely minimized. The likelihood that the defense attorney will "win" the case; e.g., get the client's desired result, goes up drastically. With effective planning, investigation, consultation, goal-setting, research, writing, negotiating and arguing, any case has a chance to win.