You may have just started your new law job at a criminal law firm, or made the long-awaited transfer to the career path of your dreams, in criminal defence. Your first case is coming up and you need some expert advice. Robert Conway, Director, Criminal Defence lawyer at Vardags has a mass of experience and below talks Lawyer Monthly through 5 major considerations to make before jumping into your first criminal law case.
My first criminal case was held in a courtroom that no longer exists. The judge who oversaw that case has also long since retired, and I can barely recall the issues in the case, although I do remember my client receiving a stern warning from the judge that if he didn’t stop talking he would be sent to the cells. I’m not sure what I could have done to prevent that, especially since I had repeatedly warned my client to keep quiet. When it comes to criminal trials the first lesson is, therefore, to expect the unexpected and accept the fact that unforeseen issues are bound to arise.
I also vividly remember my closing speech. Not the content so much as the way in which it was received. In my eagerness to include every possible argument, I ended up flailing without landing one single punch.
To some extent, advocacy is a skill that comes with practice, and, in fairness to me, this was my first trial. Looking back, the real reason why I failed to grab the judge’s attention at this crucial moment was because I lacked clarity, not just in terms of my delivery but in my preparation overall. This may sound a trite piece of advice, but success in a criminal trial is not so much to do with rhetorical flair or Hollywood style revelations, than well-focussed, thorough and detailed preparation. Whilst I may lack much in the way of Perry Mason style anecdotes, I can at least share my own experience and provide some tips to assist in your own preparation.
- Check the charge sheet
The temptation on being handed your first case is to dive straight into the evidence to find out what the main complainant says or perhaps what the crucial piece of CCTV footage reveals. In your eagerness to do this, there is a danger you might overlook the charge sheet. It is this vital document that sets out the offence that your client has allegedly committed. In considering the offence and the statutory provision set out in the charge, you train your mind on the elements in the case that the crown has to prove from the outset. This is the central organising principle which will steer the whole course of your preparation.
When you have understood what it is the crown has to prove, you can go on to critically assess the strengths and weaknesses of every single item of evidence. You can identify the main problem areas for your client in the case, and also whether there are any potential gaps in the evidence or at least weaknesses that can be exploited. The charge sheet, and, in particular, the information underpinning it, becomes your compass. Taking the time to consider this at the start of your preparation can mean the difference between confusion and landing some well-placed punches.
- Reading
I can’t emphasise how important it is to read through the entirety of the case papers thoroughly at an early stage of your preparation. I read through the papers from beginning to end at least twice before I so much as pick up a pen. Once you do this you are invested in the case and from this moment onwards, whether you like it or not, a part of your brain will stubbornly continue to process the evidence, analyse the case and commence an engagement with it which will last until the conclusion of the trial itself. (If you hadn’t worked it out already I’m sure you are now beginning to appreciate that this is hardly a 9-5 sort of job).
Some of my best preparation is done away from my desk. I might be getting on with other things entirely when aspects of the case may jump out at me. It is important to allow time to simply think through the case be it considering the credibility of a particular witness, rehearsing lines of cross examination or perhaps even polishing off arguments for a speech. In order to start the process of thinking through a case you need to first embark on a patient and thorough reading and re-reading of the papers.
- Organisation
When you’re given your first case, rather than finding yourself one of a large team of defence, you may well find yourself pretty much on your own . You will soon learn that your true allies in this work are really your highlighter markers, post-it notes and any other stationary which can in some way help you organise and navigate your way around the papers. You should also form the good habit early on of compiling chronologies and lists of the important witnesses (dramatis personae) and any other device which can help you remain on top of the detail. This may seem unnecessary in a small one witness case but as you progress and take on more complex cases the task of staying afloat of the detail becomes all the more challenging and so ensure you start as you mean to go on.
Organisation is vital for two reasons; first to ensure you maintain an air of professionalism in court. It is through a professional demeanour that you can be most persuasive and being organised is key. There is no better way to get off to a good start than to be the one person in court who knows where a certain part of the evidence is located and provide some timely assistance to the judge in directing him to a particular page especially when in doing so it means you start scoring points against the other side. The second reason is that during the fast moving and high pressured criminal trial you simply don’t have the time to spend leafing through a dense heap of papers. You need to have the information at your finger tips or otherwise your timing and delivery goes out the window and you lose the point and perhaps the tribunal with it.
- Start at the end
Once I’ve read through the papers, armed myself with post-its and prepared my chronology, I then start drafting my closing speech. Even though the speech is the very last act of the proceedings, the exercise of drafting the speech at the outset helps you focus on the arguments you would ideally hope to make on behalf of your client if all goes to plan at trial. It helps to identify the strengths and weaknesses of the case and the main objectives in the handling of each witness. You begin to think about how best to bolster the good points and exploit the weaknesses and at the same time how to soften the impact of the more problematic areas of the evidence. With these objectives in mind you can begin to start formulating your cross examination and indeed prepare the examination of your own client in his evidence in chief. In this way, your closing speech becomes your main battle plan, a blue print for how you would like to see the trial conducted.
- Put your client at the centre of the process
In America, the defendant will sit next to his lawyer in the courtroom and will be in a far better position to discuss the case with his legal representation as the proceedings are ongoing. In the UK, the situation is quite different. Through tradition and custom, rather than any specific law, the defendant will remain in the dock, usually located at the back of court, (a position that has come under challenge in the European Court of Human Rights). This can create an artificial divide between lawyer and client. However, you must always remember it is your client’s case you are fighting and they have to be involved at every step of the way. Make sure you spend time with your client and explain everything in detail both in terms of the case itself and your view of the strengths and weaknesses in the evidence. Ensure you obtain full and clear instructions upon every aspect of the evidence and spend time thinking how you can assist your defendant present his evidence in the clearest and most compelling way in his examination in chief.
Scenarios will always arise at trial that you simply cannot plan for in advance. These unexpected contingencies can be stressful to deal with and require difficult tactical decisions to be taken at short notice. What is crucial, however, is that you don’t forget your client. Make sure you discuss every development with your client and ensure you take clear instructions as the trial progresses. If necessary, do not be afraid to ask the judge for more time in order to do this properly and be firm and resolute in this. Your client may well be facing one of the most difficult and stressful moments of his life. You are the only protection, so rather than leave your client isolated at the back of court, involve them in your preparation and demonstrate by this that you are fighting for them.
