How We Develop Your Defense

Our success at trial results mostly from the work we do in the months leading up to trial.

At the beginning of our work on your case, we have two things: the evidence against you, and your response to it. Many of our clients are so revolted by the accusations against them that they don’t want to read the papers detailing them. But we need to hear your response. We must ask you to summon the courage to face the ugliness.

Theory of the Case

The overarching project before trial is to develop the best possible theory of the case. By “theory of the case,” we mean a story that explains the evidence. (See Trial Lawyers College and Gerry Spence for the importance of story in our work.)

“I didn’t do it” is not a theory of the case because it doesn’t explain how you became falsely accused. Quite often the accused person has no idea why he has been accused. That’s why it falls to us to develop the defense theory of the case.

Usually the opposition will have taken as its theory of the case the simplest story that explains the evidence.

As an example, consider a two-month-old found to have several fractures of different ages. Since babies so young don’t run and jump or even crawl, they usually don’t sustain one fracture, let alone several at different times. The simplest theory of this case is that a caretaker handled the infant far too roughly. If a caretaker is charged with child assault, that will likely be the core of the prosecutor’s theory of the case.

The theory we develop for the caretaker may be that the infant suffered from a bone fragility disorder and so sustained fractures from normal handling. Or it could be that someone else had access to the child and caused the injuries. Or that the doctor who diagnosed fractures was mistaken—that in fact the child has no suspicious injuries. These would all be possibilities at the beginning of our investigation of such a case.

As defense investigation proceeds, the theory of the case must constantly be re-evaluated. Evidence must be resifted to see whether a provisional theory of the case should be discarded or modified. Expert witnesses who work with us and with many other lawyers across the country tell us our development of theories of the case is second to none.

Whenever someone says he or she was sexually assaulted by our client, we must answer a question that will be on the mind of every juror: “If the defendant did not sexually assault this person, why does the person say he did?” The answer to that question will be the theory of the case.

We probably won’t be able to prove just why the person has made a false allegation. But when we offer an explanation that fits the evidence well—that causes jurors to say to themselves, “That very well might have happened”—we win, and you get your life back.

To find that theory of the case, we look at the constellation of persons and pressures surrounding the complainant, both in the present and in the past. We interview people who know about the complainant and those pressures. We search for records likely to help us. We consult with experts in relevant areas of medicine, psychology, and other sciences. And, whenever the law so permits, we interview the complainant.