by William M. Hines
Every lawyer sooner or later comes across a case so hopeless, so unwinable, so utterly impossible that he or she wants to just give up or pass on the client. Well, sometimes you have no choice but to tighten your belt, grit your teeth and fight the good fight. For those brave and desperate souls who will not go quietly into that good night to those with the courage and determination to go against all the odds and snatch victory from the jaws of defeat, here are some suggestions on how to not only have a chance but maybe even come out on top.
I. Read the Law
The very first thing I do is very carefully study the applicable statutes in the case. Familiarizing myself with all possible substantive and procedural issues surrounding my set of facts. Just because you are dead in the water on intent or ID or criminal liability doesn't mean you might not have a very good issue somewhere else; like punishment, damages, penetration v. contact, etc. Statutes are complicated. They are written by lawyers. There is always a loophole somewhere.
II. Interview Client
You have already talked to your client and explained his difficult position, and how they should take some kind of deal. They have refused so, there you are. Now, its time to not just talk to your client but, listen. Really LISTEN. Hear without judgement or dismissal. Sometimes from the mouths of babes or clients come the smallest nugget of truth that can, when spun with just the right magic, be woven into an argument that makes sense and fits within the strict reading of the law. ie. Self defense murder
III. List our Fears and Practice Judo
Make a list of the things in your case that scare you. The things that you feel like the jury will look at your client and say "he's toast". Then, embrace them or find a way to exclude them under the procedural mastery you garnered under step 1 above. You may be saying " no way to exclude, what does he mean "embrace"? Good question. Let's say you have a criminal case and your client confessed, or the state calls it a confession. But, really a careful review shows that he admits the conduct but, has an excuse that falls short of a legal justification but that might resonate emotionally or morally. Or that with the right spin can be reinterpreted. Use the perceived power and momentum of the bad fact and take in in a new direction.
IV. Focus on the Good and Find Common Ground
There is light and dark in all of us. I have never had a client that I couldn't find some redeeming quality or some part of there story that most people could identify with. Does he love his kids? Did he attend counseling. Was he poor and underprivileged. Did she suffer at the hands of others? Find something good or something sympathetic about your client and focus on it to the exclusion of anything else relevant that gets you nowhere.
V. Hammer on the Negative
Is there something your opponent worries about? Is there a bad fact the victim or plaintiff wishes were different. Sometimes, a concentrated focus on that negative aspect can shift the momentum or balance your bad facts.
VI. Have a Focused Strategy
Always keep in mind that power and impact comes from focus. If you don't have a credible and consistent explanation or redirection of your bad fact, it will be… BAD.
Bill Hines is Board Certified in Criminal Law and practices in Travis and Williamson Counties www.hinesrancholub.com
