You just received the order advising that your first civil trial will take place in a few months. Settlement in the case is impossible and this one is really going to trial. While the idea of going to trial seemed exciting and glamorous before, now that it is really going to happen, the fantasy quickly fades and reality sets in. Never fear, you can do a great job for your client as long as you work hard, stay organized and prepare.
Review Trial Techniques. There are many traditional “textbooks” that include generic tips for trial preparation and can refresh your memory from law school on fundamental trial techniques such as developing themes, opening statement, witness examination and closing argument. Winning at Trial by D. Shane Read and Fundamentals of Trial Techniques by Thomas A. Mauet cover virtually all the technique and strategy issues you will need in an easy to read format. Take the time to read at least one trial technique book.
In addition to sharpening your techniques, here are some additional tips to help you get organized and prepare your case for trial.
Get Organized. Make a list of tasks to be done before trial to help you stay organized. Your list should include major things like court deadlines, a list of additional motions to be filed, witness outlines, and jury instructions, among others. You can use your trial order to guide you. But you should also include practical items that will make trial easier such as creating a list of supplies you will need during trial, scheduling lunch ahead of time and having courier services available. Identify the team member assigned to each task, include deadlines and review the list regularly to make sure nothing is forgotten.
Double Check Everything. In federal court, and in many state courts, the parties have certain disclosure requirements, and there are consequences for failing to meet them. You should double check that you have met your obligations to disclose witnesses and trial exhibits. In federal court, parties have a continuing obligation to update their Rule 26 Initial Disclosures and discovery responses. Review your client’s written discovery responses once discovery is finalized, and update them if necessary. Check your disclosures to make sure that all documents you intend to use at trial and all trial witnesses have been disclosed. Many courts will exclude exhibits or witnesses not properly and timely disclosed.
Communicate with your client and your witnesses. After you outline your trial preparation game plan, make sure you speak with your client to discuss what to expect at trial. Topics should include when and where the trial will take place, and what you will need from the client before and at trial. Determine who your client representative will be at trial, and speak with that person about what to expect. Likewise, let your witnesses know about the timing and location of trial, when they can be expected to testify, and schedule times to meet with them to help prepare them for their testimony. For witnesses who will not voluntarily appear to testify at trial, make sure you have your subpoenas properly issued and timely served.
Visit the courtroom. Visit the courtroom to identify practical or technical issues, and to get comfortable with the size and layout of the room. Some courtrooms have the latest technology, while others have none. Make sure that the equipment you intend to use is compatible with the court’s system, and importantly, make sure you know how to use the technology available and have addressed any other practical issues. Determine whether permission is required to bring equipment into the courtroom, as most federal courts require an order to be entered before trial. You will also want to determine which counsel table is yours for trial and ensure that you have enough space for your team, equipment and documents. If possible, introduce yourself to the court staff and court reporter. The court staff members are an essential [the word “critical” appears already in several places] part of the trial process, and you should get to know them and allow them to know you. There may be points in time when they can provide critical help or avoid embarrassment. Most court personnel will know the judge’s preferences and procedures and provide valuable insight into your courtroom.
Talk to other attorneys. Find lawyers who have conducted trials before your judge and ask them what you need to know about your judge’s preferences. This information can be invaluable to help you avoid pitfalls and allow you to impress the judge with your knowledge of the process.
Master the facts. Re-read all depositions, pleadings and, exhibits. [The cases and rulings are addressed in the “law” section below] There is no substitute for mastering the facts. Keep in mind that the complaint and answer establish the burden of proof at trial. You need to master the allegations and know what evidence supports those allegations to know how the case will be proven at trial.
Master the procedure. Read the rules of civil procedure and the court’s local rules and standing orders pertaining to trial and know them inside and out. Identify any potential issues and conduct research needed to interpret the procedural issues. Where necessary, prepare a trial brief to hand to the judge if the issue arises during trial. Take a copy of the rules to trial and have it handy.
Anticipate evidentiary Issues. You should master the rules of evidence before trial. Read the rules again so they are fresh. Anticipate objections and be prepared to address them. Motions in limine can address significant evidentiary issues, but sometimes you may not want to alert your opponent in advance that you have a concern. If the issue is significant, prepare a short memo in advance of trial that you can use as a roadmap for your oral argument when the issue arises during trial. This trial brief should include legal citations and be presented to the judge during argument on the issue.
Jury instructions – Master the substantive law. It takes significant time and strategy to prepare jury instructions (or proposed findings of fact and conclusions of law in non-jury cases). Become a master of the law and prepare jury instructions or proposed findings of fact and conclusions of law well in advance of trial in order to clarify [you use the same phrase below] what you have to prove at trial. While the deadlines to submit jury instructions may be on the eve of trial, do not wait until the last minute. Instead, prepare the instructions early and use them as a guide for your trial preparation.
Anticipate appellate issues – know how to preserve error for appeal – In most jurisdictions, failure to raise an issue or an objection during trial constitutes a waiver of the issue on appeal. You should familiarize yourself with the appellate law in your jurisdiction so that if an issue arises, you will know how to preserve it in the event of an appeal. In significant cases, you may want to consider having the client hire an appellate attorney to sit with you during trial to guide you on preservation issues. The most common appellate preservation issues arise during voir dire, exhibit admission, motions for directed verdict and challenges to expert witnesses. Usually you will need to object on the record and specifically ask for relief, such as a curative instruction, striking of testimony or even a mistrial, in order to preserve the error. Look for a bar article in your jurisdiction to be your guide.
Prepare witness outlines, not questions. Experienced lawyers often prepare outlines of areas of questions for witnesses rather than a series of prepared questions. Remember, you are telling a story, which is most effectively presented through a conversation with your witnesses. Reading exact questions prevents you from presenting a conversational tone with your witness. The same is true with cross-examination. Your outline should identify the issues in reasonable detail, but allow you to be flexible and adjust your questions based on the witness’s answers. There are certainly specific questions on direct that you must ask precisely to establish a fact, or to set up impeachment questions on cross-examination, but those are the exceptions and not the rule.
Prepare for impeachment. Be prepared to impeach adverse witnesses with their prior testimony. Ideally, you will have a trial consultant available to quickly present a video clip to show the witness’s prior inconsistent testimony. In the absence of the video clip option, be ready to confront the witness with the page and line from her prior testimony for a proper impeachment.
Use of Demonstrative Aids. Judges and jurors expect a visual presentation, even in business cases. Your demonstrative aids should be used during opening, with witness examinations and during closing, to tell your story in a visual way that supports your case. Your presentation must be flawless though, as judges and jurors will not forgive technical glitches. Know how to use the equipment, or have a consultant on your team to handle that part of the presentation. You should rehearse your use of the equipment. Ask the judge for permission to test your equipment in the courtroom for best preparation.
Prepare closing argument ahead of time. Your closing argument should cite the evidence and law that supports your theme and the merits of your case. Do not wait until trial begins to prepare your closing argument. Prepare an outline before trial begins that cites exhibits and testimony you expect will be admitted at trial, and modify your closing during trial as the evidence evolves. If you wait until you are at trial to prepare your closing it will look unprepared and patched together. Plan ahead for a smooth and seamless closing by referring to the evidence you know will be admitted. It is much easier to edit your closing during trial than it is to create it for the first time.
Watch and Listen. Watch the jurors and judge’s facial expressions during trial, and listen to the message being sent by judge and jury. Often-times a judge will ask questions or make rulings that indicate what she thinks is important and whether she wants to hear more from the party who may be winning the argument. Listen to the questions and comments to gauge what is important to the judge and when she wants to hear from you. Often the judge does not need (or want) to hear from the winner. Be alert and try to read what the judge is really asking before deciding whether an argument or question is really necessary.
Learning from trial textbooks is critical to preparing for trial, but be practical in your approach and be prepared for the unexpected. Ask for help from those who have been through trial. There is no substitute for experience.
Mark A. Romance is a shareholder in Richman Greer, P.A. in Miami, Flo