94- 649 C.M.R. ch. 103, § 7 - COURT PREPARATION

1. Defense counsel should develop a case theory and strategy to follow at hearings and negotiations.

A. Once defense counsel has completed the initial investigation and discovery, including interviews with the client, defense counsel should develop a strategy for representation. The strategy may change throughout the case, as the client makes or does not make progress, but the initial theory is important to assist defense counsel in staying focused on the client's wishes and on what is achievable.

B. The theory of the case should inform defense counsel's preparation for hearings and arguments to the court throughout the case. It should also help defense counsel decide what evidence to develop for hearings and the steps to take to move the case toward the client's ultimate goals (e.g., requesting increased visitation when a parent becomes engaged in services).

2. Defense counsel should timely file all pleadings, motions, and briefs.

A. Defense counsel must file petitions, motions, discovery requests, and responses and answers to pleadings filed by other parties that are appropriate for the case.

(1) These pleadings must be thorough, accurate and timely.

(2) When a case presents a complicated or new legal issue, defense counsel should conduct the appropriate research before appearing in court.

(3) Defense counsel must have a solid understanding of the relevant law, and be able to present it to the judge in a compelling and convincing way.

(4) Defense counsel should be prepared to distinguish case law that appears to be unfavorable. If the judge asks for memoranda of law, defense counsel will already have done the research and will be able to use it to argue the case well.

(5) If it would advance the client's case, defense counsel should present an unsolicited memorandum of law to the court.

3. Defense counsel should engage in case planning and advocate for appropriate social services.

A. Defense counsel must advocate for the client both in and out of court.

B. Defense counsel should know about the social, mental health, substance abuse treatment and other services that are available to clients and families in the jurisdiction in which defense counsel practices so defense counsel can advocate effectively for the client to receive these services.

C. If the client wishes or agrees to engage in services, defense counsel must determine whether the client has access to the necessary services to overcome the issues that led to the case.

4. Defense counsel should aggressively advocate for regular visitation in a family-friendly setting.

5. Defense counsel should engage in settlement negotiations and mediation to resolve the case.

6. Defense counsel should thoroughly prepare the client to testify at the hearing.

A. When having the client testify will benefit the case or when the client wishes to testify, defense counsel should thoroughly prepare the client.

B. Defense counsel should discuss and practice the questions that the attorney will ask the client, as well as the types of questions the client should expect opposing counsel to ask. Defense counsel should help the client think through the best way to present information, familiarize the client with the court setting, and offer guidance on logistical issues such as how to get to court on time and appropriate court attire.

7. Defense counsel should identify, locate and prepare all witnesses.

8. Defense counsel should identify, secure, prepare and qualify expert witnesses.

A. Defense counsel must identify, as early in your representation as possible, whether you will need an expert for consultation and/or testimony.

B. Defense counsel must determine if an opposing party will be employing expert witnesses.

C. Defense counsel must locate experts and seek necessary funding in a timely manner.

D. Defense counsel must spend time preparing expert witnesses for trial.

E. Defense counsel should, when appropriate, use interrogatories, depositions and/or interviews to question opposing experts.

Notes

94- 649 C.M.R. ch. 103, § 7