There is a lot that goes into preparing a criminal case for trial that most people never see. There is the research, the review of the evidence, the development of a defense theory, and the work of finding the right experts who can help you evaluate that evidence. Sometimes that work takes months. Sometimes it takes years.
And sometimes, after all that time, you finally find the expert you’ve been searching for, only to discover that things aren’t going to work out the way you anticipated.
I recently experienced this in a case where I had developed a defense theory and was looking for an expert who could help support it. When I finally found someone with the experience and knowledge to evaluate the evidence, I learned that my expectations and the expert’s assessment were two very different things.
Not only could the expert not support my theory, but his assessment raised concerns about the direction of my client’s case.
That is not a conversation any defense attorney wants to have.
I knew I needed to reassess my approach after that call. There is a particular kind of frustration that comes with that realization. You invest considerable time in developing a strategy, and then you have to step back and reconsider the direction of the case. You know you need to adjust, but that doesn’t mean the adjustment comes easily.
There is another part of this experience that is harder to talk about. When you have spent a substantial amount of time working on a case, you develop a working understanding of the facts and build your defense around the information available to you. You trust that the information you’re working with gives you a reasonable basis for preparing that defense.
When an expert’s assessment changes your understanding of the evidence, the disappointment isn’t limited to having to change strategy. You may also find yourself confronting the possibility that the person you’ve been representing hasn’t been entirely forthcoming with you. I don’t know that to be the case, and I’m not writing this to judge my client. But it is a possibility that comes with its own weight.
And layered on top of that is the challenge of how to communicate these developments to a client who has placed their trust in you. It is not easy to sit down with a client and explain that an independent assessment of the evidence has challenged your understanding of the case, or that you need to reconsider the direction of the defense. Those conversations require honesty, clarity, and care. They are part of the work, but they are never simple.
As defense attorneys, we work with the information we have, test what we’ve been told, and scrutinize the State’s claims from every angle. We cannot independently know everything that happened. What we can do is keep pressing for clarity: asking harder questions, revisiting assumptions, and reshaping strategy when the facts demand it. And I would much rather have these conversations before trial than discover the problem in the middle of it.
Trial preparation requires more than developing a theory and finding evidence that appears to support it. It requires testing that theory, asking difficult questions, and being willing to accept answers that may require you to change course. An expert’s role isn’t to tell a defense attorney what she wants to hear. The value of an expert lies in the knowledge and independent assessment they bring to the case. Sometimes that assessment strengthens a defense. Sometimes it exposes weaknesses. And sometimes it eliminates an avenue the defense hoped to pursue.
Knowing the limitations of a defense before trial gives an attorney the opportunity to make informed decisions about what comes next. For me, that means stepping back, rethinking the available paths, and determining the best path forward for my client. The strategy may change, but the responsibility doesn’t. My job is to evaluate the evidence, explain the risks and options, and continue advocating for my client as we determine how to proceed.
Criminal defense isn’t always about taking a case to trial. Sometimes it means preparing to fight. Sometimes it means negotiating. And sometimes it means recognizing that the best course of action is different from the one you originally envisioned.
I am disappointed that a defense theory I spent so much time developing is no longer viable in the way I had hoped. I would be dishonest if I pretended otherwise. I am also disappointed by the possibility that my understanding of the case may have been incomplete in ways I hadn’t anticipated. I don’t know that my client has been dishonest with me, and I don’t need to reach that conclusion to recognize that the information before me has changed how I must approach the case.
But I am grateful to have learned this before trial, when there is still time to reassess and adjust. The goal isn’t to prove that the strategy we started with was right. The goal is to make the best decisions we can for the client we represent, based on what we know.
And sometimes, the most important work we do is recognizing when it’s time to change direction.
