Why the adversary system? Should we be filled pride or skepticism about its use? The adversary system is under appreciated and its value is misunderstood by the public. As a result, it is often held in low regard. When each side is equally represented and heard, it more often than not results in accurate assessments and outcomes. Then why the skepticism? Misinformation and propaganda by the wealthy and big business suggest that there are all kinds of crazy verdicts against the rich. No one hears when some poor person or working class citizen loses. There voice is not heard. There are very few places in this world where a handy man and a multi-millionaire can square off and be heard by everyday people to resolve their dispute. Absent the contingent fee contract such justice would be impossible for citizens. Corporations, doctors and insurance companies are financially able to hire big law firms and pay $500 plus per hour for an army of attorneys from a politically connected firm to carry their cause. There is no true equalizer in the criminal realm beyond our constitutional rights which many view as mere technicalities. Honestly who could compete against a government which has unlimited funds in a criminal trial. The government has well-trained investigators, experts and attorneys to pursue their position. If they want you badly enough it would be very hard to prevail without the adversary system and its many protections that try to balance the scales of justice. At the end of the day an innocent man’s best hope is to be physically free, but financially drained with a cloud hanging over his personal reputation.
During the course of a trial have you ever had an ” unexpected” legal issues arise and say, I know there is a case or rule out there on point, but I just cannot remember it? The best way to prepare for such issues is to keep a trial notebook.
What is a trial notebook you may ask? Well my trial notebook represents twenty plus years of knowledge I have gained from my research, review of advance sheets, jury selection issues, trial procedure and evidentiary issues. I keep a three-ring binder with lettered tabs from A to Z. I use re-enforced three-ring paper and make notes on matters I come across which might arise during a trial and then file them under the right heading and index it under the proper lettered tab. Below is an example of such a note I have listed alphabetically under “P” in my trial notebook:
Privilege – Work Product – I.D. of Witness Statements
An interrogatory invades the thought processes of counsel, and tends to reveal the detailed pattern of investigation conducted by the counsel by asking for the names and addresses of all persons interviewed by counsel. It has been held that such information is protected by the work product privilege and T.R. 26. See generally, United States v. Renault,Inc. (1960), S.D.N.Y. 26 F.R.D. 23. Massachusetts v. First National Supermarkets, Inc. (1986) D. Mass., 112 F.R.D. 149, 152-153.
I especially concentrate on areas involving discovery issues, jury selection, evidentiary foundations, privilege, hearsay, relevancy, authentication, jury instructions, motion in limine topics, procedural issues and motions for directed verdict as these issues can arise during the course of a trial with little or no time for research. A judge will be duly impressed with your ability to rapidly address such issues. Start today and begin keeping your trial notebook. It will make you a better advocate and attorney. Before you know it you will be able to cite actual authority for your legal position at a moment’s notice.