My view from dealing with this is stuff is "try anyway." See where it goes.
But I really suggest the original poster find some good evidence before trying.
Because otherwise, it seems a little silly to have nothing good to argue with and then show up.
Unless the judge bars the original poster from talking about things or the petitioner tries to suppress/quash, he could attempt to talk his views regardless of new evidence. But if he loses that round, he'll have to wait and try later with something much better.
Also, I keep getting this feeling from aardvarc and cdwjava that you two hold a pessimistic feel to a lot of this stuff.

