Trial Starts On Day One

By Clayton T. Robertson (Criminal Defense/Civil Rights Attorney)

I recently have added additional blogs to emphasize the importance of early actions and decisions in a case. On so many occasions, what happens at the outset anchors everything else that follows -- including obtaining physical or electronic evidence, interviewing witnesses when they might be most cooperative, reviewing social media sites for posts or content that may undermine the credibility of key state witnesses, taking your client through a thorough and exhaustive intake for all key facts or defenses, and other common issues.

This also means you need to keep up the pressure on the DA's office to set an assertive tone at the outset of the case -- you need them to know you are going to aggressively litigate it. I have had numerous occasions where the near-constant press-press-press of litigation by my office has produced highly favorable outcomes. Granted, some cases need to be "aged," which occurs when you and the DA are at an impasse, but to even produce that impasse, you need everything in the possession, custody, or control of the "prosecution team" (i.e., DA and law enforcement). If the DA is slow in producing this discovery, this is where your parallel case investigation by your investigators kicks in. Moreover, frankly, I do not personally believe there are "lost cause" cases -- there's always an edge or an angle that can work in your client's favor.

This is all important because trial attorneys start with what they know they will need for trial and work backwards. This is not to say you cut yourself off from other possibilities. In fact, it's often just the opposite. You still remain open to and explore other possibilities that guide your investigation and possible defenses. (See, here, for example: https://www.robertsonlitigation.com/post/everything-is-relevant.) But, ultimately, you know the elements of the offenses or causes of action, and your defenses. Moreover, certain types of cases have common discovery (i.e., evidentiary) patterns.

The mindset that everything matters from the outset -- from the very first contact with the client, and sometimes earlier if the case is in the news and you are looking for evidence and witnesses referenced in online news reports, and your early interactions with the DA's office -- has significant consequences for the representation. This mindset can be described in one simple expression: TRIAL STARTS FROM DAY ONE.

This means that your attorney keeps the eye, and a corresponding level of intensity, on the prize -- that is, on the trial, on the ultimate means to vindicate your client (if it's a criminal case) or to win a judgment (if it's a civil plaintiff's case seeking damages). Too often attorneys don't prepare their cases until the last minute, until trial is just around the corner, and then miss these early opportunities to obtain what they need for a win. Some of the very best have this level of intensity and focus. Look for it.