Trial Prep & Focus Group

We have all been there. The case is done, closing arguments over, and we are waiting on a verdict. Our job is essentially done. All that’s left is the waiting.

We try to return calls or catch up on messages, but it’s impossible to focus. And when the initial adrenaline rush is over, and we are left with a hazy inability to focus on anything. We spend time with our client, along with friends, family, and supporters. We try to assure them that we have done all we can. We hope that we have. We make small talk, maybe grab some food or something to drink. Everyone tries to avoid talking about the verdict, what it will be, and what happens if It’s guilty. But the reality is that it’s impossible to focus on anything else. Those questions (and others) run like ticker tape through our heads. Conversations about anything else are meaningless.

Then our phones buzz–the green light is on. The verdict is in. We stop what we are doing, drop everything, and hustle back to the courtroom. From there, everything moves in slow motion. Some of us try to look for clues from the jury as they return to the courtroom. Some of us simply look down—can’t change it now anyway.

The bailiff takes the verdict forms from the jury, hands them to the judge. The judge shuffles through the paperwork in a seemingly absurd exercise. The process probably takes 5 seconds, but it feels like 10 minutes. Then the judge speaks: “We the jury herby find the Defendant……”

What comes next is one of two things and both are extreme. There’s nothing more elating than hearing the first “N” sound of “not.” And there’s nothing more devastating than hearing the hard “G” in the word “guilty.”

Guilty verdicts happen. Sooner or later, every criminal trial lawyer will experience a guilty verdict. Then come the what ifs…

What if I would have called this witness?

What if I would have asked that witness one more (or one less) question?

What if I would have showed the jury a picture or video?

What if I would have argued a different theory?

What if, what if, what if.

The “what if” game is endless and futile. It’s too late. The verdict is in, and it’s guilty.

The time to ask “what if” is before trial, not after. Trial preparation is not just gathering information and writing a script. To be sure, we must have our presentation tight, organized, and prepared. We must interview the witnesses and gather all the relevant information. Those things are given.

Problems arise when we unwittingly land on the wrong theory. Or we may not even know to explore certain facts or challenge basic prosecutorial assumptions because “that’s how it’s always done.” All too often, we think we have checked all the boxes.

But there may be boxes that we don’t know about. There may be an entirely different playbook. And if we don’t know about it, we can’t prepare for it.

Most trial mistakes—particularly in criminal trials—are not about one question or the one point we forgot to argue. It’s not that those things don’t matter. But if even if we ask all the right questions and cover everything in our closing argument prep notes, it’s all for naught if we have premised our case on the wrong foundations.

Rarely will the “perfect cross-examination” win the case. Perfect cross-examinations are awesome. But they are ineffective if the theory of the case is fundamentally wrong. We can destroy a witness on cross. But if the jury doesn’t want that witness destroyed, we not only gain nothing, we are losing points. And too often we don’t even know it.

Imagine building a perfect house. It has all the luxury one would want. Pristine inside and out with perfect craftmanship. But if the house is built on the wrong footers, the house (no matter how perfect) will fail. Maybe the contractor was accustomed to building houses in a warmer climate, where the front line is only a few inches deep. But the failed house was built in the north, where footers have to be at least three feet deep.

The problem is that the house is going to fail. The bigger problem is that the homeowner, who loved the house because it had everything they wanted, won’t know until it’s too late. And worse, the contractors don’t either—they were just doing what they always have done.

The unfortunate reality is that the biggest fails often result from the best intentions. But unlike the house example, a failed criminal trial devastating. Money can’t fix it when a defendant is in prison. That house cannot be re-built.

The foundation of a criminal trial starts with pre-trial preparation. The problem is that we don’t know what we don’t know. That means criminal lawyers often make mistakes unwittingly, with the best intentions. They have learned just to go with their “instincts” or “gut feelings.” That may work some of the time. It may even work a lot of the time. But it doesn’t work all the time. Instincts are critical when we are engaged in a trial. We rely on our guts when we have to.

But instincts are a manifestation of preparation and experience. In other words, when we have time to prepare, to plan, and to reflect carefully, we must. Good instincts are no substitute for detailed planning and preparation.

We can’t be expected to know everything about everything. Fortunately, criminal attorneys don’t have to. They don’t even have to know what they don’t know. They just have to know that there may be things they don’t know.

Our trial preparation process is designed to identify these things. The idea is to build a criminal defense trial from the foundation up. The process will expose the weaknesses and the strengths. Where there are choices in strategy, the process guides us to the best decision.

No matter what level of experience, expertise, or training, there is always room for more preparation.