Monday, November 24, 2008

TRIALS: Discovery Does Matter

[Note: I hope to post some of the unique aspects of the trial earlier of Kurtiss Colvin who was found not guilty of Manslaughter in October.]

One aspect of trial preparation I learned from my short stint in civil practice some years ago was the need to speak to key witnesses before trial. This never was so evident than this last trial.

One such witness was the Travis County Medical Examiner. A few months prior to this trial, I sat down with the doctor who signed the autopsy. With the report in hand, I went line by line with the Doctor and reviewed terminolgy, the meaning of certain diagnosis, and what conclusions that may be drawn. Without a doubt, this discussion shaped my entire cross-examination and the the conclusions that were eventually drawn by the jury, namely, who may have been responsible for this crime.

Lawyers are often told that they should never ask a question that they don't know the answer to. In a cross-examination of any expert or person with special knowledge, I find it is crucial to set a road map for cross ahead of time. This was no exception.

Make no mistake, the doctor gave me only an interpretation of a report and was extremely neutral in his explanations and diagnosis. The discussion was focused solely on the report and offered no insight that was not otherwise available to the prosecution.

While some cases demand that the lawyer gain some additional knowledge in a field beyond the law, nothing aids an attorney representing the life of a defendant than the wide-ranging body of knowledge associated with forensics and medical conclusions. I have interviewed experts on ballistics, domestic violence, audiotape analysis, and have read an entire book by the state's blood-spatter expert. Nothing beats this type of preparation.

While the attorney should make those judgments according to time constraints and availability of resources, make no mistake: it makes a difference. My conversation with the doctor made a difference in the search for truth. I would urge all lawyers in whatever case you may have to seek the truth ahead of time.

Don't have to hesitate to ask the question you don't know the answer to simply because you were too shy to find out the answer before hand. Often it is the difference between a one or two word verdict.

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