On November 7, Denis Ponomarenko, a partner at Barristers LLP, shared his professional experience and offered advice as part of the LHS Discussion Hub titled “The Court and the Case: Major Miscalculations and Mistakes Made by Attorneys in Court Proceedings”

If a play begins with a coat rack, then for a lawyer, a criminal trial begins with the pretrial investigation stage. Of course, this is only the overture to the main performance, the finale of which takes place on the courtroom stage.

• What are the main miscalculations and mistakes defense attorneys make during the trial phase?
• How do you make a good first impression during a trial, and what motions should you file?
• What is the secret to mastering cross-examination, how do you properly analyze the admissibility of evidence, and how do you effectively prepare a “defense” argument?

Participants in the LHS Discussion Hub “Mistakes Made by Attorneys in Court Proceedings” sought answers to these and other questions today.

“It’s never too late to learn! Sharing professional experience and knowledge is crucial for effectively defending our clients’ rights and interests in court,” noted the moderator of the expert discussion, setting the tone for the conversation. In his view, a lawyer’s top priority should not be the desire to receive compensation for their work or to satisfy professional ambitions, but rather an awareness of their responsibility for a person’s fate—and that fate is decided right there in the courtroom!

The role of a lawyer is crucial during the trial phase of criminal proceedings. According to him, with the adoption of Ukraine’s new Code of Criminal Procedure (CCP) in 2012, a “revolution in criminal procedure” took place—national legislation was “Americanized,” and lawyers were given more opportunities to defend their clients. A lawyer’s opening statement in court proceedings, the ability to conduct direct and cross-examination—these and other innovations in Ukraine’s CPC are, in the speaker’s view, very progressive, but lawyers have not yet fully realized the potential of the Code’s provisions. “Think creatively and innovatively; act proactively and outside the box! But don’t forget that you must clearly identify the problem before the court; otherwise, it won’t be resolved!”—this is the recipe for a defense attorney’s success in court proceedings.

“A defense attorney’s opening statement is of decisive importance not only for the court but also for society.” It is particularly important to make a strong first impression in so-called high-profile cases, including criminal proceedings involving corruption offenses. As noted, the defense attorney’s opening statement serves as an alternative to the prosecution’s position, and it is crucial to convey it correctly and competently. Such a statement should be concise, “to the point, without fluff or unnecessary information,” the speaker shares from his personal experience.

While during the pretrial investigation phase—depending on the circumstances of the criminal proceedings—a defense attorney may choose between an active and a passive defense strategy, at the final stage of the criminal process, such a dilemma should not arise for them in principle. “In court, a lawyer must take only an active stance: the defense attorney must act decisively, rather than resorting to the phrase ‘at the court’s discretion.’”

Conducting witness examinations is a specialized skill that every attorney must master. However, for this stage of the trial to go smoothly, the defense attorney must keep the basic rules in mind. For example, the speaker emphasized the need to prepare “your own” witnesses for the trial: it is important to “rehearse” the dialogue you plan to conduct in the courtroom, carefully crafting the wording of your questions for the witnesses. “In court proceedings, you should not ask witnesses questions whose answers might come as a complete surprise to you”—this rule applies to both “your own” witnesses and “the other side’s” witnesses (those called by the prosecution).

Communication with witnesses should begin outside the courtroom. Speaking about the importance of the defense’s preliminary questioning of witnesses, he advises trying to simulate the course of events in court in advance and preparing the witness for a stressful situation. “First and foremost, our task is to protect the client’s interests, not to establish the truth of the case,” he says, urging colleagues to always keep a few simple truths in mind: When questioning witnesses, one must know when to stop and not try to improve an answer that has already been given. “A prosecution witness can always be turned into a defense witness.”

Preparation is important not only when working with witnesses but also at other stages of the criminal process; moreover, the defense strategy must be developed even before entering the courtroom. A defense attorney must take into account numerous factors, including the atmosphere of the court where the criminal proceedings will be heard. It is equally important to be as proactive as possible during the pretrial hearing stage. Turning to one of the most pressing issues for the domestic judicial system—excessive caseloads—criminal proceedings are very often conducted merely as a formality, simply because the court lacks the time and personnel to delve into all the intricacies of the case and conduct the proceedings in full compliance with the rules.

The quality of work by pretrial investigation agencies is also not very encouraging. “Very often, law enforcement officials demonstrate a completely irresponsible attitude toward the law, committing numerous abuses”—this point has been raised repeatedly by participants in the LHS Discussion Hub. Today, the state “does not dare to take responsibility for the substandard work of law enforcement agencies”; the classic system of checks and balances does not function in Ukraine, so very often the provisions of Ukraine’s Code of Criminal Procedure—modeled after the American criminal justice system—are implemented in a Soviet-style manner.

Complaints about the quality of the judicial and law enforcement systems from the legal profession have always existed, acknowledges Denis Ponomarenko, a partner at Barristers Law Firm. Courts and pre-trial investigation agencies will never be perfect, so defense attorneys must learn to be as effective as possible within these realities. A superficial review of the criminal case materials, a lack of proper preparation for trial, inadequate work with witnesses, and the inability to predict how events will unfold during a court hearing—these are the main mistakes made by attorneys, according to the speaker. “Just like in chess, defense attorneys must plan their ‘defensive’ moves two or three moves ahead,” said Denis Ponomarenko.