For the Defense - Vol. 4, Issue 2 - 40

too your own human frailty by being aware of any
cognitive bias or "tunnel vision" you may have
acquired over the course of the representation. By
acknowledging it, you may avoid losing your own
objectivity and maintain a clearer, more accurate
view of the strengths or weaknesses of the case.
Most importantly, establish yourself as the goto "institutional knowledge" of the case, be the
infallibly accurate factual, legal and procedural
"expert" from the beginning, thereby securing
your credibility in the eyes of the court, opposing
counsel and client.
In like vein, it is critical to identify and develop
all key issues on the record at every step - in
writing, in oral argument, at sidebar. Identify
instances of prosecutorial overreach or legal
acrobatics that contort the law or facts and
hammer those issues relentlessly throughout
the life of the case-in pretrial motions, jury
instructions, objections, post-trial motions. Do
not hesitate to repeat yourself as necessary. Know
and be facile with the state of the law across the
federal circuits (or in state/local practice, across the
counties, or neighboring states, and, if available,
in the corresponding federal district/circuit). This
approach may feel like overkill but you likely are
not preparing adequately if it does not feel like
overkill.
Last but not least, never let the trial court bully
you into accepting its interpretation of the law
or conceding a point to the prosecution. It is in
the trial judge's interest to mediate a compromise
or obtain a concession as to a controversial issue,
but there is a way to respectfully (and, hopefully,
effectively) stand your ground without inciting the
ire of the court. Towards this end, never allow the
heat of the moment, your frustration or, at times,
even outrage, at a case development, court ruling
or prosecutorial tactic to rattle you. Never lose
your temper. Change your tone, but do not raise
your voice. In our view, courtroom antics erode
credibility, and histrionics eviscerate it.
Know going into any oral argument that trial
judges may respond to you (visibly at times)
with such skepticism that you second guess the
correctness and merit of your argument, but do
not budge. If you must budge, do so only with
forethought-chalk the field in advance of the
argument-know where you have flexibility to
compromise and, even more importantly, where

For The Defense

Vol. 4, Issue 2

you do not. This degree of preparation will
serve you well in combatting prosecutorial bias,
persuading the trial court and protecting the
record for an appeal, if necessary.

Earn Your Client's Trust
Client trust is a critical component of any
representation and especially important when it
comes to managing a high-profile criminal client.
This facet of the attorney-client relationship
becomes especially challenging when the client
is, in their everyday dealings, the expert, boss,
celebrity, or elected official. Taking care not to
disrespect your client or diminish the value of
their input on important case decisions, you must
exercise control, sometimes even to save the client
from themselves. For example, the businessman
or financier who manages a global company or
negotiates multi-million dollar deals with ease in
the commercial realm, may push for a strategy that
simply does not translate into criminal litigation,
or, worse, that will detrimentally backfire in that
setting.9 It is your job to talk them off that ledge
and bring them around to the approach that
best serves the client's interest and overall case
objectives. Stand your ground but also patiently
listen and respond to each point or concern
expressed by the client. If you cannot persuade
your client, it is important to confirm in writing
(preferably by formal letter to the client) your
specific recommendation and your understanding
that the client wishes to take a different course of
action. This will serve as protection in the worstcase scenario where you are required to advance
the client's self-destructive strategy and, as you
predicted, it blows up the case or otherwise affects
the outcome. Always document any major case
decision that differs from your advice.
How do you earn the client's trust in your
advice, over his own gut or inclination? Especially
where the client's opinion, outside the context
of the criminal case, is traditionally accepted
as scripture by their employees, colleagues,
supporters and peers. It takes time and concerted
effort. With this in mind, it is essential that the
client actively participate in every part of the
representation. You cannot allow the client to rely
upon stand-ins, assistants, or other representatives
as a substitute for his own participation in the

For the Defense - Vol. 4, Issue 2

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