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September 30, 2010
NACDL's 6th Annual Defending the White Collar Case Seminar – “The White Collar Trial: Required Skills and Exceptional Techniques,” Thursday, September 30, 2010
Moderator: Gerald Goldstein
Frank Carter spoke about openings. His advice was never to waive it. It must be brief, with no more than three to four themes. Be indignant but under control. In order to prepare it, you need early access to Jencks. In a multi-defendant case, address issues and facts relating to your client alone. Talk about your client’s good qualities you know you will be able to elicit from government witnesses. Do not promise your client will testify. Stay away from humor. Stick with a style that works for your personality. If the government uses demonstratives, you should respond to those exhibits with your own.
Chris Arguedas talked about cross-examining the key government witness. Learn how to cross by watching other accomplished lawyers. You have to have real confidence in yourself – either from doing lots of trials or by being very well prepared. Remember you have law and control on your side. Cite Crawford, argue constitutional due process, materiality – dictate pace, topics, sequencing. Remember also not to do any harm. Do not cross if you don’t need to.
Chris keeps a trial notebook with a section of each witness that she transfers to a computer to ensure it is organized. She writes down her questions, anticipated answers, text of potential impeachment – and color codes them. She recommends asking only one fact per question and never using tag lines and never schmoozing with the prosecutor or agent in the jury’s presence. It’s all about discipline and the effective use of your demeanor and outrage.
Lastly, Chris rereads the rules on impeachment with inconsistent statements right before she starts her cross. And she makes sure to use documents if she can find any to impeach.
Biz Van Gelder addressed the issue of whether to put your client on the stand. She thinks it is a decision that is made well before the trial – primarily by the client. She would prefer not to put any of them on and tries to convince them to remain silent. She also asks judges to voir dire the client about the decision. If the client testifies, you must communicate your theory of the case and the client’s credibility in the examination. The key to successful direct is preparation and your trust in their ability to help the case. Biz asks her clients to help write out the questions in conformity with her outline so the client’s voice will come through. She also recommends having a heart to heart with the client’s spouse about the defendant’s decision to testify and making sure to prepare the client for mistakes or misrecollections on cross.
Marcus Busch addressed the cross-examination of the defendant. It’s a test of your judgment how you approach the witness. Map it out weeks or months in advance – structure it around your themes and your key documents. Don’t go for the home run. Win on points. Take the defendant out of his comfort zone – he’s not adored or in charge while you are crossing him, but if the witness is annoying, give him the rope to hang himself. The key to great cross is to be creative.
Marcus uses searchable case management systems to ensure he does not fumble around with paperwork when he wants to impeach. And he recommends never bluffing.
Marcus also closely watches the defendant’s demeanor in the trial – both in and out of the jury’s presence – and tries to use that demeanor against the witness. He takes good notes on direct so he can hold the witness to exactly what he testified to and demonstrate to the jury that he is accurate and therefore credible. If the witness scores points on Marcus, he tries not to show he has been hurt.
Gerry Goldstein summarized the panel’s presentation. He then covered closing arguments. He passionately emphasized telling a theatrical story at all stages of the trial, and about borrowing great ideas from great lawyers. He admitted morphing over the years from being an “attack dog” to taking a more mature, measured approach. He talked about the importance of candor, self-deprecation and pride in your role as a defender of the accused – all critical themes to convey to the jury. And, he illustrated his points with many examples from the conference’s written materials.
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