3. Strategic Consultation
We know our case. We know our client. We have most (or all) of our investigation completed, and we are reasonably sure we have all the discovery from the prosecutor (or at least know what we still need).
Now we start thinking about putting the pieces together. All too often, attorneys suffer from “tunnel vision” during this phase (or even before). We get stuck on our idea of what we think is the best strategy. And once we decide what we think is best, it is virtually impossible to shake the idea and consider something new or different. Psychologists call this “confirmation bias.” And it is the mortal enemy of effective trial preparation and strategy.
Ironically, we accuse detectives of the same thing all the time. They get stuck on their idea of the case and do not want to consider any other options (like maybe our client is innocent). We all know how devastating it is when police refuse to consider any other theories. And we have heard stories of police and prosecutors famously defending their wrongful convictions even after DNA and other definitive evidence clearly exonerates the defendant (who has suffered years in prison).
There may be a few detectives and prosecutors who operate with bad motives, but mostly this “tunnel vision” effect results from the human condition. Our egos get in the way. Once “we know we are right” or “have it figured out,” it is almost impossible to consider other options. This takes a disciplined, scientific approach.
It is foolish to think that we as criminal trial attorneys are immune from the same tunnel vision. Almost subconsciously we settle on theories and strategies that we have used successfully in some other case.
We think, “that worked in the Jones case. I know this case already….” But we do not even realize we are doing the same thing we will later accuse the police of doing–engaging in attorney tunnel vision. And this can be (quite literally) a silent killer. Without even knowing it, we have unwittingly decided on a strategy without first considering all the relevant factors. And worse yet, the strategy may look, feel, and sound right—at least until we hear the resounding “guilty” verdict. It’s a tragic and telling consequence of tunnel vision and confirmation bias.
We are not in uncharted territory here. Aristotle figured this out 2400 years ago when he developed what later became the “scientific method.” And that is the key to our Method. The idea of the scientific method is simple but genius. We generate a hypothesis (theory) and create a controlled experiment to test it. If the experiment fails (wholly or partially), we re-work our hypothesis and start over.
In this stage we make sure we identify all possible theories, themes, strategies, and questions. This is the criminal defense version of Aristotle’s scientific method. The good news is that as consultants, we do not suffer from the same inherent tunnel vision that we might have as lead trial counsel. Our interest is not about being right. Quite the opposite. The only wrong theory in this stage is the one not considered or dismissed as not worthy of consideration.
In sum, this is the “hypothesis” phase of The Method. This is where we prepare and lay the groundwork for the “experiment” phase. This is preparation for the Focus Group—the single most important phase in The Method.