Lessons for Joint Defense Group Multi-Defendant Cases

Defending a client in a criminal case with multiple defendants comes with its own set of challenges, one of which is navigating the Joint Defense Group, or JDG.

After spending the last two years at a JDG that represented 10 people accused of price-fixing and being tried three times in less than 10 months, we’ve identified some tips and practices for working with a great JDG.

Use Joint Defense Agreement

First, use a Joint Defense Agreement. It doesn’t have to be complicated, but it should be written. The agreement will address the rights of all individuals in the Common Defense and provide various protections for the remaining members in the event that a Common Defense member decides to cooperate with the government.

Regular communication within the JDG is the key to long-term success. Great JDGs can suffer from too many cooks in the kitchen. Designating a leader who can keep the group on task via regular calls early in the case encourages and facilitates open communication, especially when consensus is required on matters of strategy.

For example, our group had a weekly Zoom call, which became bi-weekly as the trial approached. An agenda distributed before each call kept track of task completion, reminded the group of what was discussed week-to-week, and monitored approaching deadlines.

Know the strengths of each member

It is also important to know the strengths of each JDG member and how best to use them. Experienced litigators, former prosecutors, prolific brief writers with an innate understanding of every fact and exhibit, and well-resourced and staffed representatives from major corporations will be available to assist in the defense of the case. .

Knowing the capabilities of each team allows the JDG to maximize their collective resources and the tasks of their staff accordingly, without sacrificing the end product of the work or the obligations to individual clients.

It is important to hire a local attorney for their knowledge of local rules and judge practices, as well as their understanding of jury selection and the inner workings of the courthouse.

Develop a case theory

Take a JDG call, or two, developing a case theory and weave that theory through openings, closings, and witness interviews. This is a roadmap for your case.

The theory must be believable, address the wrong facts, be legal, and client-centered. A case theory helps the jury understand your position on the subject of the case and why the defendants are not guilty.

Although generally an uncommon trial tactic, in a case with multiple defendants, a reserved opening statement by one or more defendants can be effective. This gives the defense the opportunity to address the jury early in the defense case with the added benefit of understanding how the evidence came about during the government case.

It also allows the defense to build their case twice and point out to the jury issues that may have been overlooked since the opening statements.

Cooperation and coordination

Collaboration and coordination are essential to the proper functioning of any JDG and should extend to the cross-examination of witnesses. Having a single attorney handle the bulk of the substantive review may best serve the interests of individual clients and the JDG.

This, of course, must be balanced with the ethical and professional obligations owed to individual clients to provide diligent and competent representation. With multiple defendants, a parade of attorneys can diminish the effectiveness of prior points of cross-examination.

To combat the fear that you will not participate effectively in the defense by not asking questions, consider requesting a jury instruction that the defendants and their attorneys have cooperated and partnered in questioning witnesses and presenting their defenses in order to to promote efficiency. Next, consider forwarding your clients’ questions to the lead reviewer for a more efficient review.

It is likely that the witnesses called in the defense case will benefit several defendants. As with cross-examination, a team should be in charge of preparing the witness and managing the live.

Circumstances may require multiple lawyers to ask questions of a defense witness, but in our case, a point of debate was whether subsequent lawyers could cross paths with the witness or should ask direct questions.

Ultimately, the court concluded that if the lawyer asked questions that remained within the scope of the previous direct and leading questions, they were appropriate. However, if the questions were on a new topic, direct examination was required. But only the first reviewer was allowed to be redirected after the government cross.

Therefore, it is important to be prepared for both direct and cross-examination of defense witnesses and to ensure that the referral lawyer is prepared to cover all matters raised during cross-examinations.

Request a table closure

If the case involves complicated jury instructions, consider requesting the use of a lay-out fence to preview important jury instructions and discuss the law on behalf of all defendants, saving the rest of the case. valuable JDG space when closing and avoiding unnecessary repetition.

Essentially, have a team fork the fence and ask the other defendants to allocate a few minutes of their total time to accommodate the person chosen to set the table.

The above are just a few practical tips to consider as you navigate the complexities of deciding trial strategy as a group while zealously advocating for an individual client. The most important consideration is unquestionably ongoing communication and group coordination in a way that advances the theory of both the individual defendants and the JDG.

This article does not necessarily reflect the views of the Bureau of National Affairs, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Megan Rahman is a partner of Troutman Pepper and provides advice and support to individuals and businesses across the country responding to regulatory, civil and criminal investigations. She conducts internal corporate investigations, represents clients in agency investigations, and handles federal and state civil and criminal litigation.

Laura Anne Kuykendall is a partner at Troutman Pepper advising individuals and companies responding to allegations of regulatory and criminal wrongdoing.

Kelly Page is an experienced trial attorney at Recht Kornfeld whose practice focuses on representing individuals in a variety of criminal matters in state and federal courts. His practice emphasizes complex matters, including antitrust matters, white-collar defense and serious criminal matters.

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