True Trial Lawyering

In this year's edition of Texas Super Lawyers, Attorney Robin Gibbs was interviewed about his 40 year life as a commercial litigator. Gibbs answered a question about the volume of work required to be a successful trial lawyer and how he achieved a work-life balance. Gibbs said,

"One of the happily and sadly inexorable truths about being a trial lawyer is you have to work enormous hours. It is a very interventionist lifestyle and there is just no way around it. If you're not prepared, it's going to show, and it's not going to go well for you. There's just no way I've ever seen to avoid that aspect of it; and that's a lifestyle choice because it ripples through your entire life."

His answer struck a chord with me since my experience as a criminal defense lawyer was the same. The fresh-faced, aspiring young people who cross my path are taught this lesson. I don't know if they learn, but I try my best to teach them the life of a trial lawyer is very difficult. It's often thankless. It often feels like failure. Not many people truly understand the sacrifice we make to perform at our best. And Gibbs was right. If we don't invest the hours our performance will show. The jury might not know. Our client might not know. But the judge will and so will our opponent. It's embarrassing to come up short, looking like an idiot, because we didn't prepare. 

But that won't be happening around these parts. Nope, it never will.

Depositions in Criminal Cases

Criminal defense lawyers have a duty to investigate their client's case and interview witnesses. The clients expect it and so do the courts. The Court of Criminal Appeals has repeatedly held that defense counsel "has a responsibility to seek out and interview potential witnesses . . .  and the failure to do so may be ineffective, if not incompetent . . . "

To this end, in this month's "Voice for The Defense," William Copeland writes about interviewing State's witnesses through a seldom utilized article of the Texas Code of Criminal Procedure, (art. 39.02). Copeland writes:

The provisions of the Texas Code of Criminal Procedure (Art. 39.02) for deposing witnesses are among the most helpful and least utilized tools available to a criminal defense attorney. Defense lawyers seldom attempt to depose State witnesses because of the perception that judges will summarily deny the required judicial authorization. Some judges will be resistant to applications for depositions, but others will be receptive. No judge is going to do it sua sponte—you have to ask. There is more law supporting your right to take depositions than you might realize.

Art. 39.02, TCCP, provides for deposing witnesses when “good reason exists for taking the deposition,” and requires the filing of “an affidavit stating the facts necessary to constitute a good reason for taking the witness’ deposition and an application to take the deposition.” You must file both the affidavit and the application. A sworn application alone is not enough. You must request and conduct a timely hearing. Advancing an application at trial constitutes waiver.

So criminal defense attorneys have an out when confronted with a witness who refuses to speak to them, or the defense investigator. Use the Code of Criminal Procedure to compel the uncooperative witness to talk. Furthermore, interviewing State witnesses is essential in providing effective assistance of counsel.

Honored by Texas Super Lawyers

Stephen Gustitis Lawyer in Bryan, Criminal Defense Attorney TX : Super Lawyers