1. INITIAL INTERVIEW
Investigation for a case begins with the initial client contact. Usually the client or a family member will call and request that you see the client or request an interview. During that conversation, you should determine the offense, code section if possible, jurisdiction and criminal record. Determine, if possible, the circumstances of the arrest. An arrest in the street by an uniformed officer has a greater likelihood of suppression problems that an arrest in the home of the defendant by a detective. In some offenses, you might do well to determine the relationship between the victim and the defendant. A domestic assault case between spouses or lovers is different from an assault between strangers. A rape case or murder case is different based upon the relationship between the principles. Once you have reviewed the statute or, better still, the applicable section in Groot's Criminal Offenses and Defenses in Virginia, you are ready to interview the defendant.
RULE NUMBER ONE
TRY YOUR BEST TO GET THE TRUTH FROM THE DEFENDANT. YOU MUST FIND WHAT FACTS ARE PRESENT IN ORDER TO DETERMINE WHAT YOU CAN DO.
There are lawyers who will tell you that a defendant has a right to lie. Remember that if a jury catches a defendant in a lie, a three-year case can become a twenty-year case.
RULE NUMBER TWO
NEVER BELIEVE THE DEFENDANT OR ANY WITNESS. MAKE THE WITNESS CONVINCE YOU OF EVERYTHING, WHETHER FACTUAL GUILT OR INNOCENCE.
When a case is presented to a jury, the "WHAT HAPPENED" aspect of the case will be evidenced by testimony and documents. These facts can sometimes be agreed upon. The WHY of things cannot be shown by direct evidence. Do not allow the client to explain why something happened. The first time you discuss the facts, just find out what happened. A question like, "What do the police say you did?" can get you started. It is more important to find out that the defendant ran from the police rather than why he ran. If a case is tried and the jury hears he ran and drugs were found, they will assume why he ran. The rebuttal of the assumption had best not come from the mouth of the defendant. It is a better defense where the jury will assume the "why" issues upon hearing the facts. Never assume you can have a client explain away the obvious. Usually the facts will of themselves indicate why something happened. If you find a client who is unable to discuss the case without discussing why, he is coached or so guilty as to be worthless as a witness in his own defense. When clients make up a story, they have a tendency to memorize a set of facts in sequential or chronological order. Interview the client with questions out of sequence. Never allow a narrative. Clients will say, "Can I just tell you what happened?" Your response should be, "No. I will ask questions."
During the interview, be sure that you determine the circumstances of the arrest. What was found on the defendant? What did the defendant say to the officers? What happened that cause the officer to approach the defendant? Was the defendant free to leave? When you interview a client, try every trick in the book to get the truth. He is the source of the initial information upon which you will predicate the direction of your earliest efforts. Do not waste time by allowing a slick or scared defendant to dictate what information is forthcoming. Before you see the defendant or interview anyone about the facts, review the law. Read the code, and/or the jury instruction book, and/or your Groot's.
SETTING THE FEE
Believe it or not, the fee is part of the tools which are available in a case. If the trial lawyer is not being compensated sufficiently to pay for the operation of his or her office while he or she invests the time, in investigation, research and thought, to formulated and present a viable defense, there is going to be a problem: the time necessary will not be invested. A fee is based upon the amount of work which is going to be necessary to place the defendant in a position wherein he as acquired a defense and a position from which to bargain, if necessary. No attorney can stay in practice or expend the amount of time necessary to identify, prepare and present a viable defense unless he or she has been paid sufficiently to maintain the office and to devote the time to the case.
Base the fee upon a sincere belief in how much work has to be done. To do this, never attempt to set a fee until you have an idea as to what amount of work is going to be necessary. What does the government have in the nature of proof? What type of witness will the client be on the stand? What does the client want or expect from your representation? Does he want an acquittal and an apology from the governor? Does he was merely to avoid jail and has no concern for the conviction? Are there defense witnesses and what, if any, do the witnesses have to the defendant? The answer to these questions enable the true attorney to determine the amount of work to be expended. If a fee is set too low to enable the attorney to work towards the goals of the case and to have a genuine chance of pulling off that defense, the case is doomed and it will end with a client telling everyone in the jail how his lawyer "sold him out".