As all trial lawyers know, the course of a trial is hardly ever wholly predictable. It ebbs and flows, developing its own rhythm, but is rarely without some mystery or surprise. This is part of the lure of trial work: precisely because of its unpredictability, the trial process is for some of us an endless, irresistible fascination.
Still, too much mystery, too much surprise, can be fatal to your client’s interests and to your own good health. Thorough, effective trial preparation tempers the element of surprise during a trial, so the more you know at the start, the better. In this modest effort, I propose to set out a few of my thoughts on how to develop a trial persona. A trial persona can only complement thorough preparation, not replace it.
Be Positive, Be Respectful
The best disposition for battle is a positive one. My former colleague, Harvey Strosberg, says: Trial is war, and the weak go to the wall. I say: Preparation and presentation, and now it’s time to get it done. A positive attitude is essential. If you are or feel defeated in your own mind before the case is truly over, then it truly is over. Continue reading “Developing a Trial Persona”
The work of a criminal law defence lawyer is both challenging and complicated. To achieve success for you, a criminal law defence specialist must possess a deep understanding of criminal law and a reputation for skill and courage in the courtroom. For over twenty years, Patrick Ducharme has been providing effective, informed, creative, and successful legal representation to his clients in a wide range of difficult and high profile cases.
Patrick’s innovative courtroom techniques and strategies have long been recognized by his colleagues in the profession. In February of 1990, the Law Society of Upper Canada, recognized Patrick with the prestigious designation of Criminal Law Specialist, an honour given only to those who have displayed excellence over many years. Patrick was also appointed to a committee to determine what other lawyers in the province deserved to be recognized similarly. The Honourable Allan Rock, presently Canada’s Minister of Justice and Attorney General, honoured Patrick by selecting him to sit on the Criminal Law Specialist Committee.
No great art is achieved without sacrifice. The best actors, writers and painters labour over their materials, honing and refining them day after day, until they seem “natural” or “spontaneous”. The work of the artist is the work of the trial lawyer. Good advocacy is acquired when the lawyer has the persistence, the patience and the humility to practice and re-practice until the skill she exhibits at trial seems as if it were naturally imparted.
Nothing is more likely to demonstrate the artistry of a trial lawyer than a timely, strategic objection. By contrast, ill-conceived, or intemperate, or irrational objections are dramatic signs of a lawyer’s weakness, or worse: Competent trial lawyers learn over time that effective objections require, above all else, a keen knowledge and understanding of substantive as well as procedural law. The lawyer can never stop studying and reading and absorbing the law and its processes. In this context, I imagine the law as a large, ever-changing backdrop. The more I know of it, the more at ease I become working with
it, and the more likely I am to develop what others might perceive to be “an ear for error” or what the judge might consider a helpful or, even better, a valuable interjection, steering the court away from error.
My work as an advocate has bestowed many benefits. One significant perk is that I have represented some very interesting and colorful characters. These short commentaries are easily documented publicly in newspapers, magazines, books or the Internet. Their public nature makes them quite unlike the private information communicated to a lawyer for obtaining legal advice, and permits commentary on the public aspects of my interaction with these former clients. Each of these individuals enriched my life, by their love of life and by the unique way they approached their role in society. The nineteenth century poet and essayist Matthew Arnold once wrote: “Use your gifts faithfully, and they shall be enlarged; practice what you know and you shall attain to higher knowledge.” In the end, if we are to be true to ourselves and to this noble profession, we need only strive to fulfill this dictum. Continue reading “Thoughts of an Advocate”
Patrick J Ducharme
Cross-examination is a treacherous process, loaded with danger, as so many others have already eloquently stated. 2 Indeed, we hear, read and see so much about what decisive effect cross-examination can have in a borderline case that perhaps we create, quite unintentionally, a most undesirable effect: the paralyzing fear of failure. I hope you will humour me a while today; I want to try to alleviate the fear.
To that end, I begin with this shaping thesis: cross-examination can be effective, even easy, if only the examiner will follow a few simple rules. In advancing this view I wish to make clear that I am not referring to what is sometimes called “friendly” cross-examination, the situation in which the examiner questions an adverse party whose testimony is compatible with or
sympathetic to the side represented by the cross-examiner. My thesis is meant to apply in the case of witnesses who are “unfriendly,” or opposed to the position advocated by the cross-examiner. I have in mind, in other words, cross-examination which aims to undermine, discredit or impeach the recipient.
PATRICK J. DUCHARME
CRIMINAL LAWYERS’ ASSOCIATION – 1999
I am asked today to provide some practical suggestions on how lawyers might prepare the defence from the first telephone call to trial. Too general a task? Probably, but I will do the best I can. Our aim will be a sort of variation on the Dale Carnegie theme: how to win clients and influence judges and prosecutors.
Meeting The Client: Be Interested, Stay Interested
A common complaint against criminal trial lawyers is that, at bottom, they tend to show little empathy for their clients. We are said to show more concern for ourselves, and our fee, than for the person who, after all, stands accused of a crime and faces the daunting power and authority of the police and prosecution. It may be true: the longer the lawyer toils away at this business, the greater the possibility that the lawyer will be insensitive to the particular plight of the individual charged. The reason is that while clients come and go the lawyer’s daily experience remains relatively the same. And the more experience the lawyer acquires the less intimidating, the more routine, is the entire trial process. It is not arrogance or indifference which sets in, but the appearance of them. Hence, my first suggestion: be interested, stay interested. No matter how familiar the accused or the offences charged, try to know the client. Really. Know who that person is. Continue reading “The Forty-Five Minute Criminal Lawyer”
Patrick J. Ducharme
An excerpt from the Canadian Legal Skills book, Jury Selection in Criminal Trials – Skills, Science, and the Law by David M. Tanovich, David M. Paciocco, and Steven Skurka.
When asked for his observations on the issue of whether to elect trial by judge alone or judge and jury, Windsor defence lawyer Patrick J. Ducharme, provided the following worthwhile advice:
It has often been said that counsel should elect trial by judge alone when in the individual circumstances of the case the law is favourable and trial by judge and jury when the facts are favourable.
In my view, this advice is overly simple and potentially hazardous to the client. Its most serious weakness is that it takes no account whatever of what is arguably the single most important factor of all, the personality of the lawyer who will advocate the case before the trier of fact.
Whatever the law or the facts may be, the lawyer must shape and develop the theme of the argument and ultimately persuade the trier of fact of the sufficiency, the validity, of that argument. Continue reading “Overview of the Jury Selection Process”