Lessons for Multi-Defendant, Joint Defense Group Cases

Defending a client in a criminal case with multiple defendants carries its own unique set of challenges, one of which is navigating the joint defense group, or JDG.

After spending the last two years in a JDG that represented 10 individuals charged with price fixing and proceeding to trial three times in less than 10 months, we identified some tips and practices for working with a large JDG.

Use a Joint Defense Agreement

First, use a joint defense agreement. It does not need to be complicated, but it should be in writing. The agreement will address the rights of all individuals in the joint defense, and provide various protections to the remaining members in the event one joint defense member decides to cooperate with the government.

Regular communication among the JDG is key to long-term success. Large JDGs can suffer from too many cooks in the kitchen. Designating a leader who can keep the group on task via regular calls at the onset of the case encourages and facilitates open communication, particularly when consensus is required on strategy issues.

For example, our group had a weekly Zoom call, which became semi-weekly as trial approached. An agenda circulated in advance of each call helped track task completion, remind the group of what was discussed week to week, and monitor approaching deadlines.

Know Each Member’s Strengths

It is also important to know the strengths of each member of the JDG and how best to use them. Experienced trial lawyers, former prosecutors, prolific brief writers with an innate grasp of every fact and exhibit, and representatives from large firms with resources and staffing will be available to assist in the defense of the case.

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

It’s important to use local counsel for their knowledge of local rules and judges’ practices, as well as insight into jury selection and the innerworkings of the courthouse.

Develop a Case Theory

Spend a JDG call, or two, developing a case theory and weave that theory through openings, closings, and witness examinations. It is a road map for your case.

The theory should be credible, address bad facts, consistent with the law, and client-centered. A case theory allows the jury to understand your position on what the case is about and why the defendants are not guilty.

Although typically a rare trial tactic, in a case with multiple defendants, a reserved opening statement by one or more defendants can be effective. It provides the defense an opportunity to address the jury at the beginning of the defense case with the added benefit of understanding how the evidence has come in during the government’s case.

It also allows the defense to set up their case twice and to signpost for the jury issues likely forgotten since opening statements.

Collaboration and Coordination

Collaboration and coordination are key to the successful working of any JDG, and should extend to cross-examination of witnesses. Having one lawyer handle the bulk of the substantive examination may serve the best interests of individual clients and the JDG.

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

To combat a concern that you may not be participating effectively in the defense by not asking questions, consider requesting a jury instruction that defendants and their counsel have cooperated and joined together in examining witnesses and presenting their defenses to promote efficiency. Then, consider providing your clients’ questions to the lead examiner for a more efficient examination.

It is likely witnesses called in the defense case will benefit multiple defendants. As with cross-examination, one team should be responsible for preparing the witness and handling the direct.

Circumstances may require multiple lawyers to ask questions of a defense witness, but in our case, a topic of much debate was whether the subsequent attorneys could cross the witness or had to ask direct questions.

Ultimately, the court found if the attorney asked questions that stayed within the scope of the previous direct, leading questions were appropriate. If the questions related to a new topic, however, direct examination was required. But only the first examiner was allowed redirect after the government’s cross.

Therefore, it is important to be prepared for both direct and cross-examination of defense witnesses and to make sure the attorney responsible for redirect is prepared to cover all topics raised during cross examinations.

Ask for a Table-Setting Closing

If the case involves complicated jury instructions, consider asking for the use of a table-setting closing to preview important jury instructions and discuss the law on behalf of all the defendants, saving the rest of the JDG valuable space in closing and avoiding needless repetition.

Essentially, have one team bifurcate closing and have the other defendants allocate a few minutes of their overall time to accommodate the person chosen to set the table.

The above are just a few practice pointers to consider as you navigate the complexity of deciding trial strategy as a group while zealously advocating for an individual client. The most important consideration is unquestionably continued 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 opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Megan Rahman is a partner at Troutman Pepper and provides advice and support to individuals and corporations 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 criminal and civil litigation.

Laura Anne Kuykendall is an associate at Troutman Pepper who counsels 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 both state and federal court. Her practice emphasizes complex cases including antitrust, white collar defense, and serious felony matters.