How Kruse Law Firm Prepares for a Complex Criminal Trial

You’ve been charged with a serious criminal offense such as murder or a very serious sexual assault, you’ve retained a lawyer, and you know it’s headed for trial a year and a half, two years from the date of the charge. And you might ask yourself, how is my lawyer going to prepare? What does your lawyer what does he or she do behind the scenes to properly prepare all the steps to get ready for a trial that’s going to take perhaps weeks in court, sometimes months. 

Well, it’s an onerous process. So a lot of people think that criminal lawyers just rely on talent we show up in court. But the reality is, there’s literally hundreds of hours of preparation to be done in cases like this, and it starts with the disclosure. In Canada, we have to get all the disclosure that we have a right and an obligation to get all disclosure from the crown. What that is, with all the witness statements, all the evidence they have in complex cases, this might consist of hundreds, or in some cases, even 1000s, of pages of documents. As a criminal lawyer, you must master that disclosure. You have to have almost a memorized version of every event that goes on in those acts and separate what’s relevant and irrelevant and organize properly.

That’s the first step, and that takes that take dozens of hours in and of itself, just wrapping your mind around a complex case that’s going to take weeks in court. Then there’s literally endless meetings with the client. I like to start my meetings with the client. Eventually, the client needs to review all this closure as well, but I review it with them. I have the client sit down and review the disclosure as well, write out their version of events. Point things out to me, and go over it and over it and over it with him or her, and on my own as well. So I have a complete map set out of the facts. I’m now able to isolate all the factual and legal issues. Basically have to memorize the facts, and that’s an onerous task in these big cases, figure out all of the legal issues as well. Early on the case, I’m developing a defense strategy. How are we going to win this case? What are the inconsistencies? What are the improbabilities? How am I going to attack and challenge the crown witnesses? That’s developed with the client in conjunction with listening to their version of events and putting a plan together and explaining it to the client very carefully, and this requires endless research, endless meetings and endless review of that disclosure.

Next often, in these big cases, we usually have to almost always there’s what are called pretrial crown motions that the crown brings and defense counsel brings. These are legal issues, legal challenges that are brought before the trial. For example, the Crown seeking to introduce certain evidence, I’m seeking to block it. The defense is seeking certain evidence or challenging constitutional challenges, endless pre trial motions. Sometimes you do two, three weeks of these pretrial motions in a big case. I just completed a big case which took two weeks of pretrial motions, for example. So this require written legal work, legal research, producing factums, producing case law, and then appearing in court and making those legal arguments to challenge the Crown’s case, hopefully to throw a certain evidence, block the crown from calling other evidence and perhaps introducing and seeking to introduce certain evidence that we’re going to seek to introduce.

So we’re getting now close to the trial. So pre trial motions take place in the months before the trials take 2,3,4, months out, we get rulings from the judge. The judge is going to rule what evidence is in, what’s out, what I was able to successfully challenge and exclude from evidence, for example. Now I have to think, start thinking about preparing cross examinations of all of the crown witnesses. For example, there might be the case I just completed, there was 20 witnesses that the crown called, so I have to, well in advance of the trial, prepare all that. I mean, each outline of my cross examination in that case was 15-20, pages, for example, and the complainant’s outline was 40 pages. You have to have your themes, your chapters, break it down, be able to confront that witness intelligently. So it’s a very ongoing process. This is day by day by day work. You know, there’s an old expression, the only way to eat an elephant is one bite at a time. And on these complex cases, you have to start often and early and master the facts, master the law and be able to all bring it together. You want to completely organize before the trial. You want that disclosure electronically and paper disclosure organized as well perfectly so it’s all in your mind and ready to go. Because if that witness says something at court, and they say A, for example, and you know that they’ve given, they’ve given five different statements, for example, in this case I just did, they give seven different statements, each of which hundreds of pages. I have to be able to instantly point to page 196 where they said B to confront them. That takes time. It takes organizational skills, and it’s simply an ongoing process. 

I wish I could just show up at the court and start talking, but the reality is this area of law, criminal law, is 30% talent which you absolutely need, 70% hard preparation. You need both. If you don’t have both, you are going to lose more cases than you’re going to win. If you have both, you’re going to do quite the opposite. You’re going to do good job for the client. 

So it’s very important to start early in and often and preparation. The next thing is, I’m going to be preparing my witnesses to testify. I might call my client. I might not. There might be other witnesses, but I need to go through mock examination in chiefs and mock cross examinations with them.

You showing up and testifying in court. It’s not just like a little conversation you’re having. You have to show a client how and how to testify properly. So it’s understood, it’s chronological, and it’s going to make a compelling story for the jury to create reasonable doubt that takes a lot of time in the case I just completed. For example, we called, oh, about seven different defense witnesses, and I spent hours and hours with each one preparing, including the client and including some of the witnesses were through jail as well that we had to prepare. So we actually had witnesses for the crown that were in jail too and I had a witness that was in jail. So that takes a lot of time, a lot of effort.

So in the weeks leading up to the trial, you’re doing your final trial prep. You’re honing your witnesses. You’re getting mock cross examination, mock in chief. You’re honing your strategy, you’re putting it all together, and you’re getting it all on paper, so you have a guide when you’re in court. Now, if you see a good lawyer present in court, it seems effortless. They’re just flowing. They’re talking. They’re not, you know, if you watch me in court, you’ll see me hardly even referring to my notes. But I have them there. I want them there as a guide if I lose my way. But you know, everything’s memorized, essentially. And this, this case literally took me. I don’t even know how many hours it was, over 1000 hours, but it just takes time, effort, step by step by step. Once the trial’s underway now it’s 14 hour days. I mean, court runs from 10 to 4:30 which doesn’t seem long, but it’s an intense process. If you’ve ever been in a trial and you try to pay attention for six, five or six hours. It’s very difficult. Most people their attention span’s not long. The Jury’s attention is not long. There’s a reason we only sit in court for that long. But then every night I’m preparing. I usually in a big trial like that. I’m going to bed at two in the morning, waking up at seven, repeat, repeat, rinse and repeat. That trial took six weeks, and that was on weekends, too the only time I take off is Friday. That’s what you need in a lawyer to do a big, complex case like this. It’s not for the faint of heart. You know, I do enjoy this work. I’ve been doing it for 36 years, but you’ve got to keep at it. I wish I could just rest on my laurels and show up and start talking. And you know, if you went and saw a lawyer who wasn’t prepared, they might sound okay, but the other lawyer, the judge, knows you’re not prepared at all. A person in the courtroom think, oh, they sound pretty good. Well, it’s garbage. They haven’t done their work. They can’t pick out inconsistencies. They don’t have their theories right. Their law is not good. Wonderful. They’ve got some talent. That’s half the battle. It’s like anything. If you’re playing a high level sport, if you’re in this business, if you’re a doctor, whatever you’re doing in life is talent plus preparation and effort. You can’t have one without the other, and it’s the only way to properly represent a client and make full answer defense in a Canadian courtroom. And that’s the lawyer. That’s the type of lawyer you need to find if you’re going to trial on any case, let alone a complex case, thank you for watching our video.