10 July 2012

How to Prosecute: (2) Learn to Deal with Defense Attorneys : B. Verify

B.  Set a level beyond which you verify anything no matter how much you trust the attorney

Trust but verify. I know it's a hackneyed phrase, but it does represent a certain reality. You must set a level below which you will not apply trust to anyone, even the defense attorneys whom you most trust.


Well, for a variety of reasons. Foremost among those is that even the most forthright defense attorney is often operating with limited knowledge - usually what her client has told her. 

Example 1: Defense attorney wants a three month continuance of the trial date because her client is going to have surgery next week and will need time to recover. Get proof from the doctor, hospital, etc.  Often, that impending, life necessary surgery the defendant has told his attorney about will turn out to be an appointment to explore the possibility of elective surgery. The defense attorney only knows what her client has told her.   

A good way to handle this situation is to require the defense attorney to get a letter from the doctor's office - which has never been touched by the defendant or his people -confirming the nature and necessity of the doctor's appointment. Without such a letter you will vigourously oppose any continuance on the basis of lack of proof. The reason you put this back on the defense attorney is that she can get a waiver from her client that will allow the doctor to disclose. If the defense attorney can't get her client to sign such a waiver it speaks volumes and leaves the motion without basis. Once the attorney has gotten the letter you can sit down with her and decide what the appropriate course of action will be.

Example 2: Defense attorney approaches you with defendant's grandpa and informs you that he wants to drop the theft charges against the defendant.  This is a situation that you will run into in check and credit card cases more often than you'd care to. Grandson stole Grandpa's checks and wrote over $5,000 around the county until he drained the account and Grandpa figured it out.  Grandpa then goes to the bank and explains to the manager that he didn't write those checks and could he please have his money back. The bank manager tells him that he can't get the money back unless he fills out a police report against Grandson. Grandpa then goes down to the police station and files a report; he then takes the report to the bank and gets money put back in his account. Thus, when the defense attorney is telling you Grandpa is satisfied she is absolutely correct. Grandpa has transferred the theft to the bank and gotten his money back; now he doesn't want to cause family discord by being the reason the Grandson goes to jail.

Defense attorney doesn't know all that background. She just knows that her client introduced her to Grandpa, who now wants to drop the charges. No matter who the defense attorney is in this situation you cannot take it at face value.  However, this time its on you to check into the situation.

Another important reason for trust but verify is quite simply to CYA. If you trust without verification 20% of the defense attorneys word will get around the courthouse that you play favorites. If you trust without verification 80% of the defense attorneys the next thing you know one of the untrustworthy ones will be complaining about you to the judge or your boss. Usually, the judge and your boss know this guy's reputation as well as you do, but it's always possible that your judge played rugby with John Smith on the Clydesdale Steeds and thinks he's a swell guy. Set a standard level and make everyone live with it.

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