Case Planning: Deciding What Things to Do to Prepare for Trial and the Order in Which to Do Them

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 141-154

141

CHAPTER 6

CASE PLANNING:

DECIDING WHAT

THINGS TO DO TO

PREPARE FOR TRIAL

AND THE ORDER IN

WHICH TO DO THEM

§ 6.01 Scope and Purpose of This Chapter

One of the most difficult aspects of defense work is attending to the myriad tasks that

must be completed prior to trial. Defense counsel must simu lt aneously seek out and take

statements from prosecution witnesses, conduct discovery, draft and litigate motions,

interview defense witnes ses and prepare them to testify, engage in plea negotiations with

the prosecutor, subpoena police reports and other documents, retain defense experts,

and consult with the client.

This inordinate series of task s is complicated still furt her by the time pressures attend-

ing the process. Counsel will often have only a short period of time between arraignment

and trial in which to perform the tasks. In a case in which the respondent is not detained,

counsel may have a month or a month and a half in wh ich to prepare for trial; if the respon-

dent is detained, the time period likely will be two to three weeks. Moreover, some of the

tasks require several weeks to perform: if counsel subpoenas reports from a police depart-

ment, hospital or public agency, s/he should anticipate that the records division of that

agency will be slow in re sponding; if counsel plans to retain a n expert witness, s/he should

expect that it wi ll take some time to locate an appropriate expert and for t he ex pert to find

the time to conduct the exa mination or test that counsel needs.

The only possible solution to this problem, albeit an imperfect solution, is to begin

performing the tasks as soon as counsel has a skeletal understanding of the facts of the

case, and thereafter revise plans and strategies as more information becomes known.

Since the client interview will tell counsel the most important foundational facts—the