"Attention to Detail"

By Clayton T. Robertson (RobertsonLitigation.com) (Criminal Defense Attorney)

From a recent Federal Defender (fd.org) criminal defense presentation: "Narrative art lives in small details woven through large emotions."

I agree. This is trial preparation in a nutshell -- i.e., emotional themes and frames, but no detail too small as part of the investigative, fact-gathering process.

Sherlock Holmes wasn't brilliant (though, yes, he was -- fictionally speaking, of course). But he was exceptionally skilled at applying what, in real life, I call "inductive/deductive looping," much like psychics aren't actually psychic; they merely possess an uncanny ability to perceive and connect details others overlook to create a "story" that resonates with you (while asking additional questions to subtly probe the accuracy of their initial impressions).

What is inductive/deductive looping, you ask? It consists of perceiving the presence or absence of details, inducing "what ifs" from those details, then searching deductively for those additional details that should (or should not) exist given a hypothetical "what if" state of affairs (e.g., "if this witness is telling the truth, then I would expect the following 'facts' to also be present" or "if the incident occurred in this particular manner, then I would expect these other events to have occurred"). Are those facts or events present or not? Are the missing facts or events necessary to your theory of the case? (Incidentally, in a separate blog on effective cross-examination techniques, I'll discuss the application of inductive/deductive looping to creating devastating cross examinations.)

The looping process is simple (and repeats itself through several fact-gathering iterations): (1) an investigative mindset with an obsessive attention to detail, (2) an ability to perceive connections among those details, (3) an ability inductively to form hypotheses based on those details (i.e., given these known facts or given my theory of the case, what else should be true?), (4) testing those hypotheses deductively by looking for those additional "facts" that should (or should not) exist given that proposed state of affairs, and (5) reformulating or recalibrating your hypotheses based on the outcome of this inductive/deductive looping process. If these other facts don't exist, then how does the narrative change? What makes more sense? What else could be true? And, most importantly, which of these proposed hypothetical states best supports your theory of the case?

Does your attorney have this "investigative mindset"? Do they have an indispensable "attention to detail"? Do they think creatively about your case? Are they willing to spend the time on your case that you deserve? Do they relentlessly press the prosecutor for additional evidence that might support these hypotheses (or undermine the prosecutor's theory of the case)? Are they willing to send an investigator into the field to find other facts you need for a better resolution? Or do they rely too much on police reports formulated by officers who unashamedly are rushing to prove your guilt? (See my blog on this subject here: https://www.robertsonlitigation.com/post/guilt-reports.)

The answers to these critical questions (which apply to any criminal case, whether it's a misdemeanor or felony) will almost certainly predict the outcome of your case, and your attorney's ability -- and willingness -- to dedicate the time necessary to deliver to you a just result.