Preparing for Trial, or What I Didn’t Get to Do on My Spring Break
By Bradley C. West

The old saying “failure to plan is planning to fail” may sound cliché but it is at least as true in the trial preparation setting as in any other. Failure to adopt and implement a trial plan in a practice emphasizing litigation will invariably result in many sleepless nights and above average marital stress. This trial plan does not need to be overwhelming; in fact, it can and should be quite simple so that it is easy to use. Utilizing the following simple steps, all keying on the trial date, will make your trial practice and your personal life much more enjoyable and result in the highest quality of service to your clients.

Most of us have several cases at any given time that are set for trial. We all know that most of these cases will settle eventually but we generally don’t know which ones until the case has progressed through the discovery process. Assuming a case will settle is a failure to plan and most often leaves an attorney in a tactically challenged position, thus the importance of adopting and using a trial plan. The plan I prefer sets out deadlines of one week, 30, 60 and 120 days, calculated from the trial setting, to complete various assignments. These dates can be easily incorporated into your docketing or calendaring software so that you are gently reminded as they approach.

120 DAYS BEFORE TRIAL

Because failure of a witness, particularly an expert, to appear at trial tops my list of trial fears, at 120 days out from trial I make sure that I have informed all witnesses I anticipate calling at trial of the trial setting. Should anyone have a conflict that cannot be resolved, plenty of time remains at this point to schedule trial depositions or make other arrangements. Experts in particular should be contacted to verify travel arrangements, local accommodations and particular needs at trial. This is also an appropriate time to review the discovery that has been done or, more importantly what has not been done. Time still remains to schedule that deposition that you initially thought you could get by without.

There is never a bad time to discuss settlement in a case and hopefully by this point you already have. If not, this is an appropriate time to discuss with opposing counsel the possibilities of settlement. As the trial nears litigants have a tendency to become more entrenched in their respective positions and this can lead to hesitancy to broach the subject of settlement. Start exploring the prospects of settlement early and, despite what you may have been told, it is not a sign of weakness to initiate the conversation.

If the case warrants the expense this is a great time to conduct a focus group or mock trial. You should have a good handle on both sides of the case and, depending on your results, you still have time to make changes in your strategy.

60 AND COUNTING

At this point discovery should be completed, or very close. This is the time to identify and pre mark those exhibits you intend to use at trial. Doing this now will get it out of the way and help you as you continue your preparations later. Also, if you intend to use any demonstrative aids at trial now is the time to prepare them, either in house or with the help of a professional service. Provide samples of these aids to experts or other technical witnesses first to verify their accuracy and usefulness. If you intend to use a PowerPoint or other electronic presentation of the evidence now is a time to make the decision whether to attempt this yourself or hire someone less technically challenged to handle the job. I suggest the latter; there is plenty to do during trial besides solve the inevitable technical glitch.

Sixty days from trial is also a good time to conduct your courtroom reconnaissance. If you have not appeared in the court where your trial is set, visit it. How is it laid out? Where is the jury box in relation to the witness stand? How are the acoustics? Is their audio/visual equipment available? These are all things you will want to know and better not to learn them on the first day of trial. If you know a colleague in the area call them and inquire about the court, the judge and the way trials are handled there. At this time you may also consider the benefits of a jury trial versus trying your case to the bench.

30 TO GO

The month before trial sees an increase in trial preparation but this plan should still allow you to handle the day to day operations at the office while continuing to prepare. In these 30 days you should begin to read all of the depositions that have been taken in the case and prepare short summaries of each. A summary is not of much use if it is as long as the deposition itself so remember to keep it brief, only referencing the most important testimony necessary to assist your witness or cross examine an opposing witness. By reading two or three depositions a day you should still have plenty of time to get through them without affecting your other work. Make sure that each of the witnesses is sent a copy of their deposition and strongly suggest that they read it during this 30 day time frame. Once you have done this you should have, fresh in your mind, virtually all of the testimony that will be presented at trial.

Once you have refreshed yourself on the facts, it is the appropriate time to develop your trial outline. This outline is intended to be the playbook for the remainder of your preparations and for the trial itself. Nothing fancy, the outline sets out each faze of the trial, the order of the witnesses that will be called, those expected to be called by opposing counsel and the exhibits, by number, that you intend to use with each. This outline should be reviewed often during trial as a checklist to verify that you have called those witnesses and introduced those exhibits that you intended.

Next, prepare the direct examination of each witness you intend to call, with references to those exhibits you will introduce. I prefer to write all of the questions I intend to ask of my witnesses, which helps to prepare the witness later and serves as a reference during trial should I lose my train of thought during trial. Similarly, you should develop a list of those points you intend to make on cross examination, again with reference to those exhibits you may use. Finally, during this time complete any remaining legal research and prepare motions in limine.

ONE WEEK BEFORE TRIAL

By now, most of us know whether our case is going to settle. If you have made it this far after having explored the possibility of settlement, odds are you are going to trial. At this point in the plan you should prepare your opening statement. Again, I suggest writing the entire opening. I understand that part of being a trial attorney is improvising and thinking on your feet and I do not at all advocate reading to the jury from a script. But, reducing your opening, as well as the other parts of the trial to writing help you to get a feel for how your presentation sounds and its length. And let’s face it, we all sometimes forget. Anyone who has ever experienced that feeling of coming up blank halfway through a perfectly marvelous (and memorized) argument will appreciate having the written version at the podium to refresh their memory. Prepare your voi dire and closing in the same manner. Closing is a little different and frequently you may prepare it during trial, as the evidence develops.

During this week before trial you should meet your witnesses and go over their proposed testimony. Using your previously written questions, go over each with the witness. Avoid the urge to give the witness a copy of your questions as they will invariably attempt to memorize them and most likely destroy the sincerity of their testimony. Show your witnesses the exhibits they will be asked to comment on and explain the process of introducing these exhibits at trial.

Preparing for trial serves four major purposes. First, it shows your opposing counsel you are on the ball and will be ready for trial if necessary. It also forces you to know about your case sooner rather than later, putting you in a better position to adapt or change your game plan. Next, a well prepared case is a case much more likely to settle, since both sides know and understand the issues. And finally, being prepared when it becomes apparent your case is going to trial results in a much better feeling than you will get calling your spouse or friends on Friday afternoon to cancel the weekend fun.

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Preparing for Trial, or What I Didn’t Get to Do on My Spring Break
Published 79 OBJ 551 (March 8, 2008)