Do Clients Sometimes Hesitate To Present The Factual But Unfavorable Parts Of Their Story?
While it is unfortunate, sometimes clients do hesitate to present the unfavorable parts of their story. And that is a problem. Some clients are very willing to engage in critical self-reflection and review, even the negative parts of their story. Some do it willingly because the stakes are so high, but others do it kicking and screaming. . The good news is that every client eventually does it – even if it is because I do not take no for an answer. I’ve had many conversations where I’ve had to say, “Look, this is your case. I am not going to prison. We’re fighting for your life here, so you have to do this.” I have sent clients back to the drawing board with their narrative or discovery review three, four, and even five times in order to get what I need from them. This part of the process is critical to understanding the case, and developing a winning defense theme and theory of the case.
Just as importantly, by the end of the process the client and I understand each other better. I know now where the client is coming from. I know what they are concerned about. I know what they think the weaknesses are in the case—and that is really invaluable. While they are engaging in this process, we are building a trust relationship founded on them believing that I am on their side, which is also important. And in the end, it does not take that long – typically no more than a few weeks to complete the review process.
While the client is developing his/her narrative, and reviewing and annotating the discovery, I am not sitting around doing nothing, I am busy working on two things. Number one, I am conducting all of the legal research that I have identified as necessary based the discovery. Based on that research, I draft and prepare any and all motions. The motion practice in sexual assault cases could fill its own book. We will discuss motions further in the next section.
The second thing that I am doing is continuing to work with the private investigator. I insist on working with a private investigator that has the mindset that they are the detective for the client and for the defense. They start their investigation the same way a police officer would begin. They interview the client much like the police begin by interviewing the victim. While interviewing the client, my private investigator will ask them to explain their story (again) in detail, and for the names of all witnesses.
The work of defense investigation can be invaluable. As an example, I once handled a sexual assault case that happened at a high school graduation party. Our private investigator went and interviewed a dozen kids who were at the party, and every one of them said something that was valuable. The devil was in details, and every kid at the party disputed or contradicted an important fact to the complainant’s story.
To take a different hypothetical, let us say you ae defending a child sexual assault case, where the assault is alleged to have occurred over several years. Your investigator must talk to every family member and close family friends. Things like: Were you at the birthday party in October of 2012? What was their relationship like over Christmas of 2010?
The private investigator should not only talk to every witness, but they are also responsible for getting any and all additional defense discovery that the client was not able to get. Does the defendant have texts that you need to get from his cell phone provider? Are there emails that we need to acquire? Did the victim or the victim’s family post anything on social media that is helpful? Is there anything on Facebook, Instagram, Snapchat, Twitter, TikTok? Does the client have stuff on their own electronic media that we should know about? The investigator needs to investigate all of that, if it is there. Maybe we then want to get a computer examiner to crack open an iPhone, a tablet, or a laptop to retrieve something the client deleted or could not save, something that could help us.
The defense team, including the private investigator and the computer expert, becomes particularly important. While the client is working on reviewing the discovery, the attorney is busy compiling the defense discovery and supplementing what the client said during the client interview, and what he client provided as evidence – focusing on things that remain missing after that initial defense investigation.
For more information, a free case strategy session is your next best step. Get the information and legal answers you are seeking by calling (248) 509-0056 today.