How Mitigation Helps the Attorney

A mitigation specialist is first and foremost, a definite time-saver for the attorney in these different ways: by acting as a liaison between the client and the attorney A mitigation expert is the key individual responsible for meeting and working with the client. The expert is responsible for the client’s connection to the outside world. An expert will act as a liaison between the attorney and the client. This is helpful considering the hours it typically takes to interview and gain an understanding of the story from the client’s viewpoint. Most attorneys don’t have the time it would take to satisfy the client. However, the client is happy to communicate and interact with the attorney through the mitigation specialist. Clients often build trusting relationships with the mitigation specialists. A mitigation specialist often acts as a liaison between the attorney and the client’s family members as well.

• by conducting a social history investigation

A mitigation specialist conducts a detailed investigation of each stage of the client’s life, including, but not limited to, the social, family and medical history in order to uncover possible mitigating factors. The mitigation information is used to identify possible witnesses to support mitigation and assist the defense team in preparing the case. As part of the defense team, the specialist can present ideas from the perspective of a person who is not an attorney, but an advocate for the client.

• by interviewing lay witnesses, such as friends and family members

Interviewing the client’s family members, friends, co-workers, clergy, etc. is the most important part of building a strong defense. Without witnesses what evidence is left for the trial? Witnesses are essential in piecing together the mosaic of the client’s life. Witnesses give testimony to the truth of the social history of the client. Mitigation specialists are trained in the framework for the interview, the structure and process of the interview, the context of the interview, and special situations and types of interviews. Information must be obtained in a complete and unbiased fashion and then orgazined and related to a larger fund of information about the client’s life history and provide insight into her/her behavior.

Allowing a Mitigation Specialist to conduct interviews for the attorney saves time. It also reduces the redundancy of the work. Several factors make the task of mitigation interviewing especially time consuming and complex. Foremost, it is very likely that serious child abuse, maltreatment, and neglect occurred during the client’s childhood.

by making referrals to mental health and substance abuse experts Mitigation Specialists can pre-screen the client to identify mental health, substance abuse or other factors which may require expert evaluation. A mitigation specialist must be knowledgeable about referral resources and community-based programs for the client, such as mental health experts or substance abuse experts. The specialist is then responsible to assisting the expert with the background of the client’s life.

• by gathering all records and documents pertaining to the client

One of the key elements in capital or non-capital murder case preparation is the collection of reliable, objective documentation about the client’s life history.

It is in the best interest of the defense attorney to delegate the responsibility of gathering records and documents to a Mitigation expert. Effectively gathering and reviewing records takes time, experience, and knowledge of the task. In many firms this responsibility is still being given to the often over-worked paralegal. Paralegal’s are extremely busy and they are also very important to each firm, however, may of them don’t have the background knowledge or time it takes to gather, research, and review each and every single piece of paper recovered.

Records can not just be requested and gathered. They must be interpreted by an individual with experience and knowledge of medical terminology and procedures. It is beneficial to appoint a mitigation specialist with a medical background.

• by preparing a mitigation investigation or social history report

A mitigation report will explain how the important factors in the client’s life up to this point have contributed to the offense behavior. It will include all of the information that has been revealed during the background investigation and interviews. The report is the key tool in educating the attorney’s on the client himself. It will assist the attorney’s in identifying potential witnesses that will be used to testify for the defense.

• by using the mitigation information to build a defense theory

The mitigation specialist will assist the defense team to collaborate the mitigating evidence into a theory of defense. The defense team must present and argue a defense that is consistent with the mitigating evidence to be presented. This theory should serve as the guide for the preparation and development of every aspect of the trial from motions, hearings, through voir dire and both phases of the trial.

Often times the argument of the prosecutor is somewhere along the lines of, “So What?” As a defense team, we consider the response, “We are each a product of our own environment and individual experiences.”

Most importantly, attorneys must credit their claims with examples of documented evidence or witness testimony. Remember, “You can’t sell, what you wouldn’t buy.”

The most convincing theories are ones that focus on why the defendant committed the crime, and what is the appropriate punishment for this person, for this crime.