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- in Building the Persuasive Case
- by Stephen Gustitis
It’s the job of the criminal defense attorney to select the best interpretation and arguments for the client from all the possible cases. Far too often a jumble of facts is presented by the defense lawyer, leaving it to the jury to find a case if one even exists. This method loses the emphasis of having a strong integrated case which is communicated powerfully to the jury.
After the accumulation of facts and ideas, but before the story is finalized, the defense lawyer’s emphasis shifts to rigorous evaluation, analysis, and narrowing of the case to the most plausible and powerful interpretation and arguments possible. Facts may be subject to various interpretations or may be contested. Analysis is necessary. The prosecutor’s case must also be analyzed to determine which issues are agreed upon and which issues are in controversy. The result is a list of crucial contested issues which must be the focus of the persuasive case.
Theories, facts, interpretations, and arguments must be rigorously analyzed to determine validity and strength. Theories must account for all the facts which the jury will believe or the theory won’t be viable. Weak theories, interpretations, and arguments should be discarded. Out of the remaining material alternatives should be compared and a selection made of the most plausible and powerful for the persuasive case. These must then be integrated around a single theory of the case in a way that appeals to the values of the jury.
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.