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COMMON ERRORS OF CRIMINAL DEFENSE ATTORNEYS AND OF
PLAINTIFF'S ATTORNEYS
- Failure to obtain a FULL eating and drinking history on an early
interview with client, while recollection (if there is one) is still
vivid.
a. Getting every detail (every "butter pat" eaten)
and the full drink count;
b. Creating a clear TIME LINE (start of drinking through incident
and test)
- Failure to inquire on an early interview about all facts relevant
to incident & arrest
a. Failure to obtain a full activities history for the full day
of the incident
b. Failure to obtain early confirmation evidence of activities
& drinking and eating history (affidavits, credit card or cash receipts,
etc.) while still available
- Failure to test "in office" the essential credibility (and
therefore triability) of the "drink count" history of the
client vs. reported BAC test values
a. Running the math "in office"
b. Doing a first reconstruction of the "probable" BAC
curve (drinking thru incident thru test)
- Failure to visit the scene of incident and/or arrest at same approximate
time of day or night as incident (view true circumstances of incident,
observations & arrest)
- Failure to obtain "good" pictures (scene, vehicles, etc.)
- Failure to obtain early accident reconstruction by independent expert
(in appropriate cases)
- Failure to get complete discovery of available documents as early
as possible (police, hospitals, labs, etc.)
- Failure to identify all triable issues and evidence needed for each
(i.e., supporting facts to be found, collected and documented where
applicable)
- Failure to review and "translate" relevant hospital records
a. To assure understanding of terms
b. To identify inconsistencies or "harmful" or "helpful"
information
c. To assure one knows exactly what was done and why (by EMTs
& in hospital)
- In Breath-test cases, failure to review all records on the performance,
operation and maintenance of the equipment used for the testing
- In other Alcohol Test cases, acceptance of a Certified Lab "result"
without further investigation
a. Failure to review supporting laboratory records on test procedures
in general
b. Failure to review laboratory records on conduct of test(s)
in question
(When expert witnesses are likely to be used)
- Failure to prepare adequately BEFORE requesting written reports or
depositions of opposing experts
- Failure to use discovery to obtain the opinions and credentials of
opposing witnesses in writing
- Failure to depose opposing experts (when allowed), early and completely
- Failure to anticipate properly before depositions all of the opinions
the expert will offer at trial
- Failure to review all depositions and reports by opposing experts
(so that the basis, or lack of basis, for opinions is clear before trial)
- Failure to identify "target areas" for cross-examination
of opposing experts before trial
- Failure to create a plan (strategy) for effective cross of experts
well before trial
- Failure to determine and understand the strengths and weaknesses of
your own experts before depositions or trial
- Failure to adequately prepare for your first interview or contact
with a potential expert
- Failure to adequately inform your expert of all relevant material
(including potentially harmful facts) before opinions are solicited
- Failure to warn your expert of the potential "traps" lurking
in the facts of your case (i.e., "You should probably know that
Mr. X has been treated for alcoholism before this incident.")
- Failure to warn your expert of cross-examination "traps"
before depositions and trial
- Trying to push an expert after he/she is retained to adopt opinions
or to take positions the expert is not comfortable with or knowledgeable
about
- Waiting until the "11th hour" to meet with the expert to
review testimony and opinions (relying only on a prior written report),
and then rushing thru preparation
NOTE: A POORLY HANDLED EXPERT WILL BE AN EXPERT NO MORE. Many
highly qualified witnesses are lost to us, and will not return to court,
after being poorly handled by "busy" or incompetent trial counsel
who allow them to be hurt or embarrassed by their courtroom experience.
GOOD EXPERTS ARE GOLD—TREAT THEM ACCORDINGLY!
SOME COMMON MISTAKES OF PROSECUTORS
AND CIVIL DEFENSE LAWYERS
Caveat: all the points mentioned above and below will not apply to
every case, and would be impractical for every "simple" DUI
tried in a busy office, but in cases where repeat offenders are at issue,
where serious accidents or death have occurred, or where a case has a
"high profile," or has hundreds of thousands of dollars at stake—you
must take nothing for granted. Anticipate a hard contest and do your homework
carefully.
Read the above suggestions; MOST of the above points apply to your
preparation as well, but some of the information available to the above
counsel is often not available to you until depositions or trial. [Example:
the driver's eating and drinking history is not available to prosecutors
as a rule until and unless a defendant elects to testify. PRACTICE TIP:
whenever a defendant gives notice that an expert has been retained and
will testify, ask by motion for the eating and drinking history—IF
THE EXPERT INTENDS TO RELY UPON IT IN ANY WAY FOR THE OPINIONS TO BE OFFERED.
Usually they ARE relying upon it in part for opinions to be offered.]
- Failure to adequately plan trial strategy in advance, relying only
on the police reports and alcohol test results (Ask, "What will
the defendant argue and try to prove given these facts in this case?")
- Failing to review the various police reports for inconsistencies or
contradictions before they arise at trial
- Failure to reconstruct your own time line for the events of that occasion
(incident to test and arrest, and before arrest) to the extent that
you can do so [don't wait to be told such facts for the first time at
trial]
a. Where did driver work that day; what time leave work; what
time period was "open" before driving incident? (How much
of this can be documented?)
b. Same facts as to passengers with a driver (if known to you)
c. Seek out witnesses (i.e., waitress-"What time did he
come in here, what time leave?")
- Failure to study known facts about driver (height, weight, age, condition)
and calculate based on BAC result (test) the range of alcohol consumption
consistent with the test
- Failure to prepare figures in advance to discuss with your expert
on the range of alcohol consumption over time consistent with the test
value
- Accepting, without examination before trial, the oversimplified opinions
of your own expert (i.e., opinions which do not take the range of test
values & alcohol consumption into consideration—and which will
not withstand an "educated" cross-exam). ["He had eight
drinks, in my opinion."—will not wash where a range of drinks
is consistant with the BAC.]
- Leaving until the "eve" of trial a careful study of the
credentials and opinions of an opposing expert
- Failing to establish a plan and order for your examination of an
opposing expert (with the result that you waste time quibbling over
minor issues and leave major "points" untouched)
- Failure to adequately prepare your expert for the lines of inquiry
likely to be advanced by your opposition (good anticipation is critical—"surprises"
are rarely helpful to experts)
- Failing to assure that your own expert limits testimony to competent
opinions and does not overreach (if you know the "science,"
you can help keep witnesses on track—if you don't, they are on
their own)
- Trying to push experts to adopt or offer opinions which are not their
own, which are not derived from the factual evidence available, and
which they cannot properly support
- Failure to be sure you understand how the tests in question were conducted
(breath, blood or other), and failing to disclose where there is "play"
in reported numbers [When such matters are raised for the first time
on cross, it can look like you've been hiding important information.
A full disclosure on DIRECT testimony of the ranges and "play"
inherent in test numbers rarely hurts your presentation, and can help
it immeasurably when the defense gets into such matters on cross. Jurors:
"The prosecutor already told us all about that—what's this
guy's point?"]
- Berating opposition experts as though THEY were the defendants. A
very risky business at best, especially if the witness has already made
a good impression on jury or court. [Avoid "boomerang" cross-examinations
which circle back to hit and hurt you—because you've made the jury
uncomfortable, or even sympathetic to that witness. The effective cross
of an expert should put your own case forward and demonstrate your knowledge—not
your ire.]
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