First, I meet with my potential client to make sure that I am the right lawyer for him or her. A client needs to feel comfortable with her or her lawyer. This initial meeting is extremely important. If at this initial meeting a potential client does not have a gut feeling that the lawyer is the right one for the job, then suggest he or she hire a different lawyer. The relationship must be one of trust. Once the engagement agreement is signed, then it is time to get down to the business of defending the case.
I always begin with reading the statute, even if I have read it hundreds of times and I know it like the back of my hand. The client needs to understand each and every element that the state has the burden of proving. If the state cannot prove just one of those elements, then their case is over. Think of it like a table with four legs. If one of the legs is cut off, then the table falls. Therefore, it is important to discuss each element of the alleged charge(s) with the client.
It is very important to gather as much information as possible when discussing each element of the alleged charge(s). Even though the state has the burden of proving their case, it makes the defense’s job much easier if the client happens to have an alibi or witnesses.
The next step for me is to think about how the case law and how my client’s rights apply to the situation. Have his or her rights been violated in any way? For example, if the situation started because of a traffic stop, was the stop a legal stop? Did the officer have the right to pull him or her over in the first place?
During this process I demand discovery from the State. The State has 15 days to comply with the demand from the date they officially charge a defendant and the date of the demand. When I receive the State’s witness list, it will have a list of persons they intend to call as witnesses and all exhibits they intend to use in a trial. The State must list all people and evidence, including exculpatory evidence. If there are items on this list, like pictures or recorded interviews, I immediately order them from the agency (whichever police department conducted the interview or took the pictures). This process of ordering all evidence can take a bit of time.
As it starts to come in, I may discover that I need to order something from another agency. For example, if my client was a passenger in a vehicle, when I get the police report, I will see the VIN number and tag number on the police report. I will then need to order a certified copy of the vehicle registration from the Department of Motor Vehicles to prove the vehicle did not belong to my client. This document may take another 6-8 weeks to arrive.
Also, when I receive the State’s witness list, I may determine that I need to conduct a deposition of a State witness. This decision is a delicate one. A deposition is a sworn, statement given out of court before the attorneys and a court reporter. Attorneys conduct depositions ahead of a trial to see what a witness might say at trial. It also allows attorneys to get the witness to commit to a certain statement ahead of time, then if the witness changes his or her mind during the trial, he is perjuring himself. There is no right or wrong decision in determining whether to conduct a deposition. It is a strategy and another reason why you need to trust your attorney.
Once all of the evidence is collected, I sit down with the evidence, the case law, and the statutes, and I think about how the case looks. Do I think the State will be able to prove its case? Then I look at the penalties (I have already discussed this with my client in the initial meeting) that my client is facing again. I have another meeting with my client and go over it all with my client. The final decision on whether to negotiate a plea or go to trial is ultimately up to my client. But I do understand that my client is relying on my opinion of the case. That weighs heavily on me and I don’t take it lightly.