So I took a little break from blogging about criminal defense, DUI defense, civil trials and matters of wrongful death. And then things just started "popping up." A new case or twelve. A kid in jail who just could not get it together. A former Marine facing life changing decisions. The mentally ill – fearing life and death as they
It happened a couple weeks ago in Canyon County. Our client faced felony charges for aggravated assault with a deadly weapon and a misdemeanor malicious injury to property count. The case involved an argument between ex-spouses that ended with one spouse refusing to leave the other’s property. The "trespassing" spouse acknowledged she had been repeatedly asked to leave but she would not. Finally my client went upstairs and brought a handgun to the kitchen. She still did not leave. She had taken his cell phone so he could not call for help and he had a broken leg. Finally, he went next door and got help.
The case is really about a claim that my client pointed a gun at his ex and said he was going to kill her. That story had changed from when she told the police officers that he had said "nothing" while pointing the gun at her, to "you’re gonna’ die…." Good cross-examination using the prior "nothing" statement showed the inconsistency and the jury understood the facts were not as she portrayed.
The property that was alleged to have been injured was my client’s keys. So the essence of that charge was that he injured his own property.
Those are the nicest words at trial. Still, a lot of time and effort was required to get there. Fortunately our client could hang in there.
Here is a lesson I learned during the trial – do not go gently into that arena. Be nice and tell your story, but if you have to get a little tough with the complaining witness, be ready to do so. I don’t mean badger the witness for that never gets results, but be ready to stand your ground.
And tell your story. Our client’s story was pretty simple – she absolutely would not leave and she had taken his phone to prevent him from calling the police.
No time to rest on that little laurel, but happy to report the victory.
Years ago I was getting ready for a monster trial – pitting the ultimate power of the United States against a little guy who held out in the face of an all out attack on his home. People died. Protestors gathered. Television cameras rolled and major magazines wrote headlines in anticipation of an almost certain end. Tanks and helicopters ferried officers and snipers about until the thing finally ended.
As the time for trial neared – nearly nine months after the siege – the question of whether we could settle the case arose. The Sage – a burley mountain man of a lawyer who was our leader – looked me square in the eyes and said it best:
"We only go to trial if we have to. If we can settle any case and walk away with our heads up, that’s what we do."
To win your case at trial you have to know if it can be won. Then again – what is winning?
If you are charged with aggravated assault with a deadly weapon (pointing a gun at someone, a felony) and the government offers to accept a plea to simple assault (a misdemeanor), should you go to trial? I suppose it depends on your tolerance for the pain of a possible felony conviction. Sometimes you know that what you did went too far, and you can swallow a little crow and pay a small price to avoid the possibility of a felony conviction. Sometimes you can’t. And sometimes the government makes that decision for you – they refuse to negotiate and settle.
Then you try your case.
Here’s the starting point: is there an alternative to trial?
Last summer we prepared for a wrongful death trial in Wyoming. Our clients had lost their son while he was skiing at a well-known ski resort. This was the second such case we had handled against that resort in the past five years or so. In each case, the lawyers were the same, the decision-makers were the same, even the experts were the same. Two lives lost. Families destroyed. The ski industry almost never settles until you are almost at trial. They spend money defending their industry, even in the face of an unnecessary death.
The case settled just a few weeks before the trial was to start. Why? Because each side understood the risk of going to trial. We all knew that juries are impossible to predict, regardless of how many mock trials or focus groups are done. And we did not have to try the case to win.
Our clients had already lost their son. They wanted a resolution that mostly included an acknowledgement of their loss and the defendants’ partial responsibility. A mediated settlement achieved that solution.
If you have a case – civil or criminal – and a trial is your only way out, by all means, go and fight and do everything you can to "win." But after 31 years in the courts, I can tall you the Sage is right. If there is another solution, explore that option first.
Think you have a civil case? Wrongful death? Personal injury? Wrongful discharge? Or a criminal matter? Maybe we can help you win – whether you go to court or not.
As any experienced Idaho criminal defense lawyer will tell you, the vast majority of cases are resolved with a plea bargain long before they ever reach a courtroom. Plea bargains are important to prosecutors because they help efficiently clear dockets and allow them to prosecute more cases. They can also be beneficial to defendants by allowing them to serve
I watched a young criminal defense lawyer struggle with objections the other day so I thought I would review the process we use to object. It always looks so cool on TV – the lawyer stands and announces "OBJECTION, YOUR HONOR, he can’t testify to that!" You expect the Judge to immediately stop the trial, chastise the lawyer and affirm the objecting party. In real life trials it seldom looks so clean. We stumble and stutter and spew out "objection" just loud enough to be heard, but without the conviction that we know why we are objecting. Here are four basic rules I learned as a young JAG that might help you as you stand and deliver:
First – say the word. "Objection." Say it with conviction so that you can accomplish the real reason you are up in the first place – say it like you mean it so the witness will stop talking!
Second – give a legal basis for the objection. Not a treatise, just a rule will do: "Objection, hearsay."
Third – if you win the objection then you probably want something. How should the court fix whatever problem caused you to get out of your chair? Ask for a remedy. Ask the court to strike the testimony given before the objection, or to cure the problem.
Fourth – if you lost the battle, you many need to make a record by an offer of proof. Not on every little objection, but sometimes you need to protect that record for an appeal.
So there are the rules, courtesy of the United States Army JAG school, as best I recall. Hope they help you do it better if you do it at all. And that might just be the bigger question: When should you object? Let’s save that for another day.
Off to court …
A young lawyer came to see me yesterday.
"How do you win cases?"
The answer to that is not as simple as you might imagine. A friend and mentor says that he has "not lost a jury trial in over thirty years." Really? No losses?
"Well, it kinda’ depends how you define ‘lost’!"
And that may be true, but what I have learned from that friend and mentor, and from watching some of the best trial lawyers in the land is that preparation is the key to success in court.
The difference is preparation. Period.
Not a Harvard education. Not having worked as a prosecutor, public defender, or judge. And certainly not having been in the courtroom for 20 or 30 years.
The key to success – whether that is winning outright or obtaining the best possible result for your case – is preparation. Preparation is time spent getting ready for trial.
So how can you help your lawyer get ready to win your case? Here are three ideas:
First – tell the lawyer the whole truth.
Second – empower the lawyer to spend the time he or she needs to get fully prepared.
Third – take his or her advice!
And if you are a lawyer reading this, remember that our obligation is to get ready for trial as best we can. If you don’t have time for the client, don’t take the case.
Now back to preparing for trial for me. One to go in January, another in February, and then three more later this year. Five trials may not sound like a lot, but getting ready to try those cases can take a lot of time.
How about you? Getting ready for trial? If you’re a lawyer with issues you need to bounce off another lawyer, give me a call. Let’s talk about your case.
If you have been injured by an Idaho state, county, or city employee and you want to bring a civil lawsuit for damages, you MUST file a notice of tort claim before you can bring a lawsuit to recover for your injuries. Even if the potential defendant is not an employee – you still must file the notice of tort claim to have a chance to recover money damages from injuries or death that resulted from a government employee or agent’s negligence. The law in Idaho requires that the tort claims notice must be filed WITHIN 180 days of the date of your injuries. Again, if you do not file the notice of tort claims within that time, you HAVE NO RIGHT TO SUE.
If your case involves any of the following types of entities or their employees or agents, you will need to file a Tort Claims Notice before you can bring suit:
- State office or department;
- State agency, authority, commission or board;
- State hospital;
- State college or university;
- Municipal Corporation;
- Health District;
- School District;
- Irrigation District;
- Special Improvement or Taxing District;
- Hospital or Nursing Home established by a County or City;
- Any other State or local governmental entity
There is no "form" that is required for your tort claims notice, but it must include certain information including the conduct and circumstances which brought about the injury; the nature of the injury or damage; the time and place the injury or damage occurred; the names of all persons involved; the amount of damages claimed; the residence of the claimant.
This is a very important requirement that you may not get right if you rely on your own understanding of the law. If you get this one wrong – you have no case, so get some help. Call a lawyer who has experience with this. I have had to tell that potential client that his right to sue under state law was gone because he had failed to file a proper notice of tort claim, and that was a conversation I will never forget. So get some help.
Just how do you address the court? What does your language tell the judge in that Ada County or Federal Court appearance? Whether you are a lawyer or a defendant, an expert witness or a plaintiff, the way you speak and the things you say can make a difference. Check out this video, it’s hilarious, but sadly true. We seldom speak with the authority or conviction we need to convey in court.
The Sixth Amendment to the Constitution provides you with many of your most important tools at trial. It is intended to guarantee a fair trial to every person accused of a crime. Whether you are charged with DUI, a drug crime, a sex offense, fraud, manslaughter or murder, the Sixth Amendment helps us to get you a fair trial.
If you have been charged with a crime, we will be happy to meet with you to explain your Sixth Amendment rights and how they can help us defend you in your particular criminal defense matter.
So what does the Sixth Amendment provide? It provides you with these essential rights at trial:
You have the right to be tried by an impartial jury.
You must be informed of the nature of the charges against you.
You have the right to confront the witnesses against you.
You have the right to a lawyer.
These basic rights are just the start – for example you don’t want just any lawyer – you want an experienced trial lawyer.
You don’t really want just any jury that might be impartial – you want a lawyer who can use his or her experience to choose jurors most likely to listen to your story, and jurors who will want to help you.
So the Sixth Amendment gives us a framework to defend you, but the key to your defense – your trial and your innocence – is the lawyer you choose.
Before you hire a lawyer who says he or she has the experience you need to face a prosecution – STOP. Ask that lawyer the five questions we have here. Then give us a call. For over thirty years we have been providing the best defense in criminal cases in state and federal courts.
Today’s post is authored by Boise lawyer Courtney Peterson. Courtney’s practice focuses on criminal defense and child custody.
What does it take for your simple assault or battery charge to be elevated to a crime of domestic battery or domestic violence? Not much. An act as simple as grabbing your live-in boyfriend or girlfriend by the wrist might be charged as a domestic violence crime. In Idaho, you don’t have to married to someone to be accused of domestic violence. All it takes is evidence that an alleged victim is a “household member.” Aside from a spouse, “household member” can include a former spouse, a person you have a child with regardless of whether you’ve been married or not, or a person who you cohabitate with. If you’re charged with a domestic battery or assault, not only could you be spending more time in jail, but you run the risk of being charged with a felony if this isn’t your first offense. A first offense domestic violence charge, whether a battery or assault, carries up to 6 months in jail and a $1,000 fine. A second charge within 10 years has a maximum penalty of 1 year in jail and a $2,000 fine. If you’re charged with a third within 15 years, that’s a felony. You face up to 5 years in prison and a $5,000 fine.
Domestic violence allegations are always treated differently than the average battery or assault. Alleged victims are generally taken at their word, often not interviewed to the extent that an alleged aggressor is. Police automatically assume you’re guilty and will treat you as such. They might cut corners in investigating the incident and you might never get to tell your side of the story. Once you’re charged with a domestic violence act, a judge will immediately issue a No Contact Order against you to protect the alleged victim. Until you get a chance to be heard by the judge, these orders generally prohibit any contact whatsoever. You will likely have to move out of your home until the order is terminated and might be prohibited from seeing your children for a while.
Police and prosecutors take this charge seriously, and so should you. This is not something you want to fight on your own. You need an attorney with experience who can tell your story. If you’ve been charged, give us a call.