A New Year’s resolution you really can fulfill

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New Year’s Resolution 2008 — don’t be afraid to ask the question.

Bev Butula’s recent blog submission on using Internet mapping search engines is not only very helpful, but reminds me of the importance of “going outside the box” in legal research. I do a lot of criminal defense work, as well as civil litigation. Criminal defense counsel’s function is not only to defend her or his client, but also to make the adversarial process work. State v. Marty, 137 Wis. 2d 352, 361, 404 N.W.2d 120 (Ct. App. 1987).

This means reviewing discovery and exploring and preparing available defenses. Not just what the prosecutor gives you. It also means consulting with appropriate forensic evidence and medical experts, or at the very least, researching and reviewing the literature and treatises available, which might be relevant to establishing a particular defense that may potentially be present in your client’s case, e.g., DNA evidence, firearm and fingerprint evidence, AODA and mental health issues which might impact on intent or mitigate punishment, etc.

A criminal defense attorney cannot adequately advise her or his client about the strengths and weaknesses of the case until the lawyer has identified and examined them. As Chief Judge Sobeloff wrote in Jones v. Cunningham, 313 F.2d 347, 353 (4th Cir. 1963), cert. denied, 375 U.S. 832 (1965),:

Of course, it is not for a lawyer to fabricate defenses, but he does have an affirmative obligation to make suitable inquiry to determine whether valid ones exist. Such a duty is imposed for the salutary reason that “prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered. Von Moltke v. Gillies, 332 U.S. 708, 721 (1948).

Oftentimes in research, it’s not so much the answer that’s important, but rather the question that is asked. It is also where and how you ask the question. Now, in 2008, regardless of where one practices law, access to all kinds of expert treatises, articles, law enforcement and crime lab studies and reports, etc., on virtually any forensic evidence topic, along with contacts for potentially helpful experts can be readily found through the internet. Lawyers should not be limited to just Westlaw or Lexis searches alone, utilizing only their structured parameters and search criteria.

Be creative in formulating and asking the right question by punching in a six, seven or eight word search request in Google or similar search engine. Like the fishermen on the Grand Banks, pull in the net to see what is helpful and might lead elsewhere. Don’t be deterred if not much comes up at first. Rework the question and search criteria and cast the net again.

Remember Spencer Tracy as the fisherman who never gave up in Captains Courageous?

The image of the old prospector Walter Huston (given my age and graying beard), when he finds gold in the Treasure of the Sierra Madre, is more appropo for me. Do a Google Image search on that to see what you can discover.

Not only is creative and more expansive research using search engines like Google good and efficient practice, but the consequences of not doing so can come back to haunt you in your legal case with a vengeance. In Munster v. Groce, 829 N.E. 52 (Ind. App. Ct. 2005), the Indiana court of appeals found that due process was not satisfied for service of process purposes in a civil case, where plaintiff’s counsel did not even try to conduct a simple Google internet search or “skip trace” in 2001 to find a defendant for service. Someone at the Indiana appeals court undertook a quick Google search and came up with addresses for the “missing” defendant and his relatives, which plaintiff’s counsel said could not be found. Munster, 829 N.E.2d at 62. Plaintiff’s counsel was taken to task in Munster for this lack of simple diligence and his client’s complaint was dismissed.