If you’ve ever watched a courtroom drama, you probably think that criminal defence is all about grandstanding and surprise witnesses. It’s not. But it’s better—and more interesting—in reality. Here’s how solicitors really build a case and explore all avenues of defence—before and during a trial.

It’s All About The First 48

When a solicitor gets a phone call to provide assistance for someone who’s been arrested or charged, it’s clear that time is of the essence. No, not like the cop shows that dawdle in finding evidence; it’s actual urgency. Memories fade quickly. CCTV footage gets deleted with the progression of time. People go away. People become less available.

The first step for a criminal defence solicitor is to preserve what’s available before it disappears. This means identifying witnesses who may not have been interviewed by the police, making requests for video preservation, and documenting the defendant’s version of events while everyone’s still got a clear head. Taking only a few days to put all this together may mean critical information and evidence is lost—for good.

The prosecution has already had time on their side; they’ve built their case since the initiation of an investigation into the incident in the first place. Therefore, solicitors do not take the time to try to build an argument in this time; they’re merely trying to maintain the foundational elements of what might eventually assist in the creation of an argument.

Prosecuting What They’re Prosecuting

Once an initial meeting occurs and the defence solicitor speaks to their client about what happened, they’ll delve into the evidence obtained from the prosecution—a confusing bundle—before making sense of it all.

If there’s one thing that most don’t realize from a prosecution’s perspective, it’s that they’re likely wrong about certain things, meaning a defence solicitor needn’t waste time in challenging what they have to say when there’s ample gaps and holes within what they have to say.

Thus begins the analytical process—the timetable creation—which holds all relevant witnesses’ statements as they construct an argument against what they believe is being argued against them. For example, if the prosecution presents fifteen witness statements, each with some information missing but relevant, but one person has an alibi who was supposed to be interviewed but wasn’t, this absence says a lot.

If CCTV exists of the incident but only video footage for part of it is provided, what about the part where nothing incriminating exists? If forensics were taken but testing for drugs was never reviewed, maybe there was something else present that could either help or hinder the defence. This process takes time but it happens within this window where it’s vital to bring everything together.

Making Alternatives Work

However, in order for alternative narrative construction to work effectively, it also means that experts have to be consulted. Whether they’re forensic experts, medical professionals or other technicians, each provide useful insight into the validity—or non-validity—of the prosecution’s constructs.

Now would be the time to challenge ideas. Competing reports may cost money and take time but if the argument could go in favour of making Alternative Construction instead of Reasonable Doubt construction, then why would the solicitor not want to try?

Not Everything Is Overwhelmingly Helpful

Once all the disclosure documents are obtained from the prosecution, anyone who isn’t on the defence solicitor’s team will be found through police efforts (which sometimes don’t always work out). This consists of alibi witnesses or random people outside on a cold night who might just have been passing by.

But here’s where it gets tricky; not every witness who volunteers assistance should take the stand. Sometimes these witnesses fail because under cross-examination they can’t hold themselves together, or their support wavers when other points are questioned.

Additionally, sometimes these seemingly helpful potential witnesses open up needless doors to evidence that would otherwise be inadmissible because they’re not part of an alibi team—they were just present. Deciding these risks is something of which clients rarely see, and while it may be regrettable to tell someone that their person or idea won’t work for them in court, it’s sometimes unavoidable.

What If?

Once the prosecution determines how they want to present their narrative of “what happened”—the defence needs to show how it’s reasonable that “what if” happened instead—that’s not a crime.

What this means is that just because a situation happened one way doesn’t mean there wasn’t something like it that happened differently. Maybe someone was just trying to defend themselves or maybe they weren’t there at all. It does not matter—but casting doubt either through ethical considerations (which are flimsy at best) or factual expectations (which hold more value) is important in holding conjecture against what’s been presented.

This means forensics matter. This means eyewitness accounts matter. And this means definitive timelines matter—or they may not—but it’s worthwhile to know how they bear out by exploring expert assistance along the way.

The Ethical Considerations That Don’t Care How Much Time Went Into Them

Solicitors constantly need to make value judgments between what’s more helpful than what’s more harmful. They need to make educated decisions if something needs to go into evidence for or against purposes down-the-line or if finding out more things about a certain situation is too risky.

For example, should certain things like video footage or polling occur should it happen? Or should it risk drowning out all advantages?

Prosecutors have motives for their prosecuting; so do magistrates. Some prosecutors are willing to meet half way with reasonable agreements; some are hard-nosed about everything. Some magistrates determine what’s gone right or wrong with legal technicalities and some use reality as their frame of mind.

Discreet Defeats

It’s often said that a loser admits defeat with grace—so too does a solicitor who’s invested countless hours into what ultimately appears like little more than repeated conversations and paperwork.

While clients sit without seeing their solicitor every day of every week going through stacks and stacks of documents—in hopes that their paperwork appeals/conversations can be thoroughly reviewed—they’re in meetings over meetings over meetings attempting to find credibility between what’s best for the clients and what will ultimately help avoid even jeopardizing trials in the end.

Most client work happens outside of courts; 95% non-court work happens outside of court while only 5% is dedicated during court times—and that’s mostly for cross-examinations.

Where It Matters Most

Investigators and barristers are credited with garnering insight into what’s best—but what’s often credited with working successfully over time due to legacy are drafts, drafts and draft submissions and ideas that might never see insiders—but make up all ground along the way.

Applications filed to admit/discharge evidence based on how they’ve been obtained through third-party solicitors? Possibility. Additional requests for disclosure required? Possibility. Submissions based on abuse-of-process requests? Challenge if necessary. These things help determine what evidence and what’s decided without acknowledgement.

This administrative component may seem slow but it’s where technical legal background helps most. A poorly drafted application—due to lack of care—could omit something critical; waiting too long can cut potential chance. So making everything connect early connects quicker.

Reality Is Not Idealized By Screenwriters

It’s not idealized for television; it’s idealized in real life as rigorous work needs legal knowledge, investigative skills, insights gained from effective efforts and thorough willingness to determine what’s best on paper.

Thus, the best defence solicitors are those who dig in from day one with more extensive arguments determined around realistic constructs instead of positive thoughts and hopes going into the case mode.

It’s not sexy like television—but when it’s sexy in real life as proper protection for rights and privacies, isn’t that sexier in real life when stakes couldn’t be higher?

Jane