James McComas has written an excellent short book that deserves to be on the shelf of every criminal defense attorney.
His core insight is that, in every case, only a few facts and circumstances determine the outcome for either side. Once these “outcome levers” are identified, our job as defense lawyers is to eliminate or minimize our opponent’s points and maximize ours.
To this end, McComas advocates a five step process:
1. Identify Legal and Factual Theories.
2. Identify Outcome Levers. McComas defines an outcome lever as “anything — a fact, a piece of evidence, a psychological reality, a jury feeling, a current event, a cultural phenomenon, or other factor — that is capable, in and of itself, of determining the outcome for one side or the other.”
3. Maximize or minimize outcome levers.
The most readily available means to maximize or minimize outcome levers include:
Continuing Case Analysis
Pretrial motions litigation
Arranging expert testimony
Preparing to cross examine opposing witnesses
Preparing defense witnesses to testify
Well founded timely objections
4. Choose the Best Theory of the Case
5. Identify and Deal with Trapdoors. McComas defines trapdoors as “reasoning by which jurors can buy most of our position but still return a verdict against our client.”
McComas then goes on to describe what attributes he believes a theory of the case must have before it will be accepted by the jury. It must be:
Productive of an acquittal.
Playable, i.e. not too close to the reality our opponent seeks.
It is my belief that whether they do so deliberately or subconsciously, all great trial lawyers engage in some form of the process McComas advocates. Up until now, young lawyers had to discover these truths for themselves or be lucky enough to learn them from a mentor. Now they are available to all.