TrialPrep

Boxers or Briefs? - No - Binders or Files?

It's no secret that organization is key to trial preparation. I thought I'd share - and invite comment - about two different organizing techniques that I've used, and the one I've found, unquestionably, to be the most effective.

First of all, I must have missed the "Trial Notebook" class in law school. No one ever really taught me how to use a binder or binders to any kind of advantage. As a result, when I tried my first cases, I basically used a file system. Each piece of discovery, that would eventually become a piece of evidence, got its own manila file, complete with copies, a scribbled sheet with any plausible evidentiary arguments, as well as caselaw in support of those arguments. Every witness - direct and cross - got his or her own file, filled with notes and scripts. The opening statement got its own file - as did the Rule 29 and closing arguments. Things were organized, all right, though it got a little messy when more than two or three files were open at one time. And, of course, the very act of organizing was immeasurably useful, since I was basically putting the government's case together, and then my own, by compiling the different files.

I've tried more than a dozen cases using the "file method" described above, but I've felt the most comfortable and secure (and, not least of all, victorious) when I've used binders instead. For some reason -and I wonder if anyone else feels the same - I get a sense of greater organization, and therefore greater power, when I punch three holes in all that paper, buy some colorful dividers and a three or four inch binder, and have everything at my fingertips in a nice straight pile.  (I need to give credit to Peter Berkowitz, who I've taught with at UPR, for finally giving me the "Trial Notebook" class that I missed back in law school.) 

The first tabbed divider is usually for the indictment. The second is for openings and closings - first the drafts, then the finished products. The third is for evidentiary arguments, accompanied by relevant caselaw. It's best to try to figure out the order that the evidence will come in, and stack the arguments accordingly. The fourth tab is for cross-examination - maybe different colored paper for different witnesses - and is supplemented by an accordion file for each witness with traditional manila files that are filled with copies of the witness' prior statements.  Finally, there are tabs for direct examinations, defense evidence, and the Rule 29 argument.

Of course, every case is different, and may require more or fewer dividers. I once had a book filled only with pretrial motions, responses, and orders. It was great to be able to refer to them in an instant, because they were so clearly tabbed and stacked. I've seen binders filled only with evidence - some cases, I know, have a lot of evidence.

The binder's most useful function, I think, is that it can, and should, be compiled as early as possible. As the binder fills up and takes shape, so does the theory of the case, the ideas for cross and closing, and some cogent evidentiary arguments. I'm sold on this method now, and I guess the people happiest about it are the folks at Office Max. Any case that looks like it might go to trial . . . gets a binder.

The Illinois Trial Practice Weblog

While dealing basically with civil cases, The Illinois Trial Practice Weblog has some excellent trial practice pointers in a number of categories --such as opening and closing arguments, use of technology at trial, cross-examination techniques, and many more-- that are just as useful in criminal law practice. Check it out (surf through the posts under the various categories) and bookmark it. The blog's author, Evan Schaeffer, also pens another great blog: Notes from the (Legal) Underground.

Welcome aboard, Rachel!

I am happy to announce that Rachel Brill has agreed to blog at TrialPrep. Rachel is a Charter Member of PRACDL and has served on the Board for more years than I can recall right now. More important, Rachel is an accomplished trial lawyer, and will be able to share her excellent ideas with all of us. Knowing how federal trials work out only too often, I'm sure Rachel will place a lot of focus on the need to create a good record for appellate review (she also happens to be an excellent appellate lawyer, and in charge --on behalf of NACDL-- of assisting the rest of us mortals in preparing for oral argument before the First Circuit).  Rachel chairs PRACDL's CLE Committee and is also a member of the Amicus Committee and our Lawyer's Assistance Task Force.

U.S. District Judge Disallows Use of PowerPoint Presentation During Closing Arguments Unless First Shown to the Prosecutor

In a recent criminal trial at the U.S. District for the District of Puerto Rico, District Judge Carmen C. Cerezo did not allow 2 defense attorneys to use PowerPoint presentations in their closing arguments unless they were first shown to the prosecutor before the prosecutor made her own closing argument. This is quite surprising and we think it was an error on the Court's part to require counsel to show it to the prosecution as a condition to it being used at all. Counsel refused to do so --correctly, in my view-- and made their closing arguments without the PowerPoint presentation.  I am informed that the Court did not give any explanation for its requirement that they be shown to the prosecutor before she allowed defense counsel to use their presentations during closing arguments.  Nor did the Court allow counsel to argue the issue.

If the Judge wanted to ascertain that the presentations did not contain anything that was objectionable, she could have asked that they be shown to her outside the presence of the prosecutor. Requiring that it be first shown to the prosecutor was the equivalent of asking counsel to rehearse his closing argument to the prosecutor before he is allowed to make one at all.  In our view, the Judge's ruling was not a proper manner of dealing with the situation.

But it is also my view that when faced with such a situation, it is incumbent upon defense attorneys to address the matter in an ex parte memorandum under seal, making a proffer of what the presentation consists of, and --if possible-- include  printouts of the presentation in thumbnails (in this case I am told by one of the defense attorneys that it consisted of bulleted items he would use as he argued to the jury).

There is a big difference between using a PowerPoint presentation during opening statements, where anything of an argumentative sort may be objected, and using it in closing arguments.

This much is illustrated in Effective Use of Courtroom Technology: A Judge's Guide to Pretrial and Trial(from the Federal Judicial Center) which clearly distinguishes between use of, for example, PowerPoint presentations for opening statements, during trial, and during closing arguments.  In pertinent part it states:

Closing argument
Closing argument can be made much shorter and better with the use of good illustrative aids. Lawyers tend to stay on point when guided by an organized presentation of the evidence and arguments. Fewer illustrative aids are objectionable in the context of a closing.

Occasionally lawyers are swept up in the enthusiasm of the moment and go beyond appropriate uses. In the early days of multimedia, plaintiffs’ lawyers in a 1988 Arizona case used a $17,000 18-minute video production entitled “The Titanic” which illustrated plaintiff’s point that the defendant accounting firm’s faulty audit sank the plaintiff bank. The video used scenes from the 1960s Titanic film “A Night to Remember.” Part of the film included the bank’s logo superimposed on a segment where water was pouring into the Titanic’s engine room. The final scenes showed empty life jackets floating on the water as the ship disappeared beneath the waves and the narrator intoned, “[the accounting firm] had numerous warnings [the bank] was in troubled water but also chose not to listen. … Perhaps they too thought they were invincible.” The jury awarded a $388 million verdict that was overturned by the trial judge for what appeared to be as many reasons as he could muster.

The court may want to look at a few kinds of displays in advance of closing arguments to protect against potential inappropriate uses.

• New material. Video, photographic, or graphics materials that have not been marked as exhibits in the case are at the head of the list of things that might usefully be disclosed so that the court can consider objections before closing argument starts. Lawyers occasionally get carried away with the possibilities for analogies. The standard bullet-point slides that lawyers use in closing argument also occasionally overstep the bounds of what is permitted, but the principal dangers of irretrievable prejudicial effect on the jury come from video, photo, or graphics materials. The Titanic film clip is an example in this category. Another example in this category (that can go either way) is using photos of witnesses that are single frames picked off deposition videos in order to remind the jury, in closing argument, about the witness testimony. Many jurors have more personal reactions to witnesses they liked and did not like when reminded by a photo.

• New sound, motion, or color. Exhibits in the case to which sound, motion, or color have been added for purposes of closing argument should also be reviewed in advance. Occasionally superimposing one exhibit on another falls into this category, although if both images are in evidence, superimposing one over the other would not usually be a problem. The principal danger, indeed often the objective, is that jurors will confuse the closing argument display with the real exhibit. This technique may be the only practical way for one side to tackle the other side’s most persuasive exhibit, but the court might want to see the proposed visual display in advance.

• Digitally altered photos. Although no digitally altered photos may have been used at trial, occasionally a point on closing argument can be made effectively by altering a photo to illustrate the point. Lawyers may want to change the photo to illustrate the persuasive nature of their own argument or the gaps in Part Four: Trial logic in their opponent’s argument. If it is not made very clear to the jury that the photo has been changed, there may be confusion in the jurors’ minds about the exhibits.

• Testimony from the transcript. It may be useful to a lawyer to invite close jury scrutiny of the testimony of a particular witness. One technique for doing this is to use portions of the transcript, enlarged on the projection screen or monitors, with underlining and labels as to page and line numbers. This is usually a suggestion to the jurors that they ask for the transcript and study it themselves. If the court does not plan to allow jurors to examine the written transcript, then it might be useful to review this type of display in advance and, at a minimum, require counsel to preface these remarks with the admonition that the trial transcript is not available in the jury room during deliberations. Even though counsel are now presenting arguments, and the narrower rules governing opening statements no longer apply, some displays may be so manipulative as to be unduly prejudicial or present a significant danger of confusing the jury.

In this case, rather than the Court examining the presentation or even thumbnail printouts, it instead required that counsel show the actual presentation to the prosecutor.

This should serve as a warning to all of us that the best approach is to broach these matters with the Court even before trial, with sufficient time to submit to the Court any arguments and thus, essentially, educate the Court.

The Final Period Before a Large Trial

Now you can all show this to your spouses, as well as keeping it in mind for all your cases. "Honey, look, the First Circuit recognizes that this is the life of a trial lawyer, why can't you?"

The final period before a large trial, like the trial itself, involves late nights, multiplying tasks and resulting confusions that are hard to imagine for one who has not experienced them. The burden upon the trial judge is scarcely less.

Young, et al., (Barry Scheck, Nicholas Brustin, Robert Mann: respondents) v. City of Providence, Nos. 04-1334 & 04-1360 (1st Cir. April 11, 2005).

While it is good to realize that the First Circuit panel (Chief Judge Boudin, and Circuit Judges Lynch and Lipez, with the opinion authored by Chief Judge Boudin) is aware of what preparing for a trial is like, it is even more important that we internalize this in each of our cases so as to try to avoid adding more tasks that could and should have been done earlier to those last minute inevitable ones.

On another note, this is an important Rule 11 sanctions case from the First Circuit you should all have at hand.

Thank you, Carolyn Elefant!

Carolyn Elefant publishes her own blawg - My Shingle - and is also a columnist at law.com's Small Firm Business.  Her most recent column Ask a Simple Question deals with the matter of lawyers being reluctant to ask for help, and it is very timely to one of the purposes of this blog: lawyers helping lawyers, and the need for lawyers to ask for help.

As I indicated in this post at the PRACDL Blog, the very idea for starting TrialPrep came from my having met with a fellow defense attorney who was getting ready to try his first criminal case in federal court.

Some of the reasons for attorneys being reluctant to ask for help are described in Carolyn Elefant's column. As was indicated at the last PRACDL annual assembly, the less experienced attorneys must feel free to ask those with more experience for help, and those with more experience must be generous in their help. We reminded the less experienced attorneys how the more experienced ones were constantly brainstorming ideas and calling on each other for help.

I can recall only last summer when I was working on an important Blakely issue, and had done an enormous amount of research, drafting and redrafting, but still felt somewhat uncertain on whether my planned approach was the best.  I had seen a few comments posted by noted attorney Peter Goldberger over at Sentencing Law and Policy, as well as having seen a few postings to a listserv from him. Although I had never met Peter, I decided that he was the person I should ask for help, and had the nerve to send him an email one evening. A few minutes later I was pleasantly surprised to receive an email from Peter and after a few more exchanged emails, felt very much assured of what path to take.  I grant you that not every lawyer approaches Peter in having both great knowledge and a willingness to share, but I can assure you that many more than you might think do have plenty of knowledge and that same willingness to help others.  Moreover, at times the things we are uncertain of have nothing to do with substantive aspects, but "dumb" things such as (I recall these from my first oral argument before the First Circuit) where are the lights?, where do I sit?  So, please, don't be afraid to ask for help.

Welcome!

I thought it would be a good idea to have a blog devoted to the actual defense of criminal cases. Much of the work we do takes place outside the courtroom, and even away from our own clients. And the majority of criminal cases never result in a trial.  So if this blog is intended to cover those cases that are going to end up being plea bargained, why the name TrialPrep, rather than "Defending a Criminal Case" or some other more encompassing name?  I thought about that, and it is my belief that we should approach most of our cases, at least initially, with the idea that the case will be tried.  I recognize that sometimes our own clients tell us right off the bat that they just want a good deal, etc., but since we cannot guarantee "good deals" or particular outcomes to our clients, then we should always keep the idea of trial open, and prepare accordingly. Moreover, to the extent one engages in many aspects of trial preparation (in a broad sense) one also has a better grasp of the facts of the case, and more information to work with as far as plea bargaining is concerned. One gets to know the strengths and weaknesses in the government's case and can use this to get that "good deal" the client wants.  Moreover, if no deal satisfactory to the client materializes, or if your client simply changes his mind and decides to go to trial, you avoid finding yourself in a situation in which you all of a sudden have to start hussling to prepare for that trial you never expected to be at. There is always plenty of last minute work to do even for cases in which you have diligently prepared for trial, and you simply do not need to add to it unnecessarily. You will have enough work cut out for you reviewing last minute Jencks material, comparing it to previously disclosed evidence, getting an investigator to look into anything knew arising from those documents that may need further investigation, etc.

The difference in the support personnel for a sole practitioner and an attorney at a larger firm can make the role of a sole practitioner that of a one man band, requiring much more organization in order to  get things done.

Different attorneys approach trial preparation in various ways.  It is my hope that we can get as diversified an input from defense attorneys about the various matters they do in preparing for trial, as well as their particular approaches.  Of course, different cases require different approaches, and we will try to discuss that here as well.

Trial preparation continues throughout trial.  I don't know how many times I have found myself getting out of court, driving home, and working late into the night (or  even working practically all night) just to get something ready for the following day. At times it is research and drafting motions and legal memoranda (perhaps based on some objection raised at trial on which the Court asked me or both parties to make a written submission). Other times it is review of the daily copy of a transcript (received via e-mail perhaps at 10:00 p.m.), and marking it for use the following day in cross-examining a witness. I have also returned home from a day of trial only to find that the Government has filed a motion at 8:30 p.m. (thanks to the advent of ECF) which requires my submitting an immediate response so the Court will have it the following morning.

You have to prepare to argue various motions, including your Fed.R.Crim.P. Rule 29 motion for judgment of acquittal, and you also have to prepare any additional jury instructions you find are needed, not to mention preparing for your closing arguments.

There are differences in trying a case on your own and being in a multi-defendant case. We will also discuss those here.

Although I have not mentioned it, there is also the matter of the use of technology prior to and during trial. Are you going to be making a PowerPoint presentation? Will you be using presentation software such as TrialDirector? And of course, there is the use of programs such as CaseSoft's CaseMap, TimeMap, etc. that can assist you greatly in organizing your case for trial. We will discuss some of those aspects here, but it is obvious that whatever you intend to do in these areas, requires plenty of pretrial preparation, and cannot be left to the last minute.

Okay, enough for now!  It is my hope that you will find this site useful for your cases and that you will contribute your own views and ideas, be it via the comments to the posts, or by emailing them to PRACDL.