Trial Advocacy

Keith Evans on the “Newton Rule”

February 19, 2013 Trial Advocacy

Rule 41 of Keith Evans’ Common Sense Rules of Advocacy is what he calls “Newton’s Rule.” Isaac Newton’s third law of motion, of course, was that for every action there is an equal and opposite reaction. Evans applies this rule to trial advocacy to suggest that you never want to get into a confrontation with your finder-of-fact, [...]

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James Shellow: Cross-Examining the Analyst in a Drug Prosecution

February 8, 2013 Drug Offenses

There are certain reference materials that are essential to a law practice.  In the case of a criminal defense practice in D.C., for example, you could not get by without the D.C. crimes code, jury instructions, rules of evidence, sentencing guidelines, the two volumes of the Criminal Practice Institute’s manual, and some type of legal [...]

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The Gold Standard in Witness Credibility

January 24, 2013 Investigations

My investigator Wayne Marshall gets an A+ for his testimony yesterday at trial. Of course, I am biased. Marshall is everything you could want in a witness: He knows his stuff. He is well-spoken, direct, straight-forward. He answers the questions you ask of him and nothing more. He doesn’t try to anticipate what he thinks [...]

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On Developing a Trial Persona That Works for You

January 16, 2013 DUI and Driving Offenses

One of the first things they told us during training at the public defender’s office in Philadelphia was that, although they could help us develop many of the skills we needed to become successful trial lawyers, they could not help us with our trial personas.  That was something we had to develop for ourselves. And [...]

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“No Questions, Your Honor”

December 6, 2012 Trial Advocacy

If practice makes perfect, then prosecutors tend to be better at direct examination and defense attorneys at cross. It is a question of what we do the most of. I think of this while watching a prosecutor conduct a cross-examination in JM-13. The defendant has taken the stand in her own defense, and the prosecutor [...]

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When We Act Like Petulant Children

November 30, 2012 Trial Advocacy

The prosecutor is sore with me. “You made me out to be kind of shady,” she says. She is sitting with the police officers outside the courtroom after the judge has granted her request for a trial continuance.  They stop talking when I approach. * * * * * Mark Bennett called me out on [...]

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On Getting Your Own Witness Locked Up

November 19, 2012 Assault

I put our star witness in jail. I have heard about prosecutors being slammed for doing this. One of my adjunct professors in law school – a prosecutor in Philadelphia – ended up on someone’s list of the top ten worst prosecutors in the country for having one of her witnesses in a murder case [...]

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Firing Andrew Crespo

October 1, 2012 D.C. Superior Court

I am watching what has to be the best cross-examination at a probable cause hearing I have ever seen. It is a new attorney from the Public Defender Service (PDS), someone I have never seen before, and he is handling the cross-examination like he is Irving Younger. He is pleasant but firm. He moves methodically [...]

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A “Not Guilty” Letdown

September 12, 2012 Trial Advocacy

I walk my client out to the street afterward (“You mean I don’t have to sign anything, I can just go?”), disappointed that, since it is late in the day, there is no one still at the courthouse to share the news with. First I get my wife’s voice mail. Then I get my investigator’s. [...]

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Leaving the Drama — and Surprises — for Closing Argument

August 29, 2012 Trial Advocacy

Your client is cranky with you for the lousy job he thinks you are doing on cross-examination. There are no dramatic “gotcha” moments like you see on T.V. Instead, every time you elicit what appears to be an inconsistency in the witness’ testimony, you pull back, moving onto a new line of questioning. It is [...]

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