Jan 29, 2017 Criminal defense- Preparing clients for a trial roller coaster ride
Recently in a criminal trial that I won, my client seemed concerned when the judge was overruling some of my objections, while he also sustained a number of my objections in between.
It is always important for a criminal defense lawyer to prepare his or her client for a possible roller coaster trial, underlining that no matter how bumpy the ride gets, the key is to win in the end.
The trial might include a seemingly irritated judge, a purportedly vicious prosecutor, and seemingly heartless opposing witnesses.
Sometimes the seeming irritation from the trial judge has less or nothing to do with the criminal defense lawyer and more of a feeling of dissonance between the judge’s own personal preference or bias about the state of the law and the actual state of the statutory and caselaw as it applies to the defendant. That dissonance may arise from the judge’s personal biases, from the judge’s not seeing the state of the law as wise or sensible, or from the judge’s trying to wrap his or her head around the multitude of legal and factual issues involved in the case.
Trials can get downright ugly. Apparently, trials long ago were meant to replace physical combat as a means to resolve disputes, which of course can also get ugly and deadly. Although fiction, the 1972 Kung Fu pilot’s final fight scene is great for illustrating the importance of not getting dejected when the fight gets ugly, but instead to keep one’s eyes, energy and strength on the prize of victory. During the Kung Fu final fight between Kwai Chang Caine and a sellout Shaolin priest paid to capture or kill Caine, Caine’s victory is not assured. By the time Caine wins, by killing his opponent, his energy is nearly spent.
While of course as a Shaolin priest Caine then says there is no honor in killing others, trial combat is all about winning within the bounds of the law, which means that trial work is not for those squeamish about inflicting severe psychological and even financial damage on the opposing side if that becomes necessary for obtaining victory. In trial battle, the focus needs to be on harmonizing an imbalanced situation, only increasing the amount of damage inflicted on the opponent as needed.