Countdown to trial
August 2018 - Christian C. Mester
You continuously refine your trial skills, but have you done the same with pretrial preparation? Make the most of the time you have with this 120-day plan.
Trying a case today is not the same as it was 10 years ago. Now we read books about neurocognitive science, about how to understand and relate to jurors, and about every aspect of trial strategy. We attend educational seminars and conduct focus groups, all to obtain the best results for our clients.
To reinvigorate your pretrial practice, focus on being ready to try your case 60 days before trial by scheduling a “Trial Run.” This full-day review ensures that you are intimately familiar with the case and—equally important—that you have enough time to find any missing pieces.
But before you commit to this strategy, you must decide: Is a Trial Run manageable? Answer honestly. If you decide it is, you and your team must treat it as you would any other court deadline.
120 Days to Trial (60 Days to Trial Run)
By this point, you have lived with this case for a long time. Now that you are in the final four months, you should make sure everything is on the right track.
Depositions. Abstracts and summaries for all depositions should be complete, and letters should have been sent to defense counsel on any outstanding issues. Review the defendant’s discovery responses, and send a good-faith letter if any are deficient.
Focus group findings. Take another look at what your initial focus groups revealed about potential juror biases, case themes, and areas for further investigation. Review your discovery plan, and decide if you need to refine your case theme based on testimony and new issues that have emerged. If any have, make sure you have evidence to support or refute them.
Jury instructions. Review these so you know that you have all the necessary proof for trial. Zero in on any missing pieces with tailored discovery.
Demonstrative exhibits. Now that discovery has revealed various testimony and documents, make sure your demonstrative exhibits are still accurate. Also, create demonstratives to use with your experts and on cross-examination.
Motions in limine. If you have identified in limine issues, do the research and prepare the motions. Decide which ones can wait for the deadline closer to trial and which should be strategically filed earlier. For instance, if you intend to move to strike one of the defense experts from testifying at trial, you may want to file it earlier—it may provide additional pressure on the defense to initiate meaningful settlement discussions at a time when trial is not imminent.
Opening and closing. Assign and prepare outlines of your opening and closing. By Trial Run, your opening statement should be at least 95 percent complete, and your closing outline should have most of the important points you intend to emphasize.
Meet with your clients. Provide a case status, and ask them for any updates. If it’s a case involving personal injury, ask about any new health care providers. Your clients should review their deposition transcripts and discovery responses. Focus on their testimony relating to damages, and highlight photographs, videos, and social media pages that can powerfully convey their injuries—this also includes identifying witnesses who can testify to these facts.
Interview new witnesses identified in your client meeting. If the witness adds something important to the case, formally identify the witness and make him or her available for deposition.
Review and update all records. Carefully review any important records produced during discovery that may not be in your files. For example, something may have been produced at deposition that needs to be included with the medical records binder. Also, if it’s a personal injury case, check that the medical records, bills, and medical expense summary are current. If these need to be updated or if there are new health care providers, order, obtain, bates stamp, and supplement to defense counsel and your relevant experts.
Joint record. If you did not begin discovery with an agreement to use one set of records, submit a proposed joint exhibit to the defense instead of waiting until you are closer to trial. This also lets you know if the defense intends to contest the authenticity of any exhibits or whether agreements to admit documents into evidence will be obtained in advance.
Consider deposing a corporate designee. If you have requested audit trail information, deposing a corporate designee is especially helpful to gain access to the electronic database, particularly if you believe that documents are missing. A corporate deposition can usually get you additional documents.1
Notify experts of the trial date in writing. This should preferably be done by letter, since emails can easily get lost. If your experts have not been deposed yet, provide the trial start date and which week you intend to call them to testify. Explain that a specific date will be coming shortly, and ask them to tell you immediately of any conflict during that time frame.
Witness checklist. Prepare a list of all witnesses—both yours and the ones whom you expect the defense to call. Divide the witnesses among your trial team for the testimony outlines.
Prepare testimony exams. Create outlines for direct and cross-examinations for each assigned witness. When you see testimony that the jury needs to hear but is from a witness whom another team member is handling, flag it for your team member.
90 Days to Trial (30 Days to Trial Run)
In this block of time, continue pressing forward while making sure you dot your i’s and cross your t’s.
Expert witness opinions. Find out if the updated records you provided 30 days ago affect their opinions. Ask whether additional discovery areas must be explored based on the new records. If their opinions do not change, inform the defense of this in writing. But if these new records change the experts’ opinions in any way, immediately give the defense an opportunity to depose them on their new opinions—this prevents these opinions from being excluded at trial.
Last, determine whether any expert needs to reexamine your client, and—if necessary—schedule a supplemental deposition.
Send your experts the other expert testimony. Send your experts’ transcripts to each other so they have enough time to become familiar with all of the opinions well in advance of trial. Sending your experts the transcripts from the defense experts’ depositions is crucial too.
Update your life care plan and economic report. Reinforce any areas of concern that the defense attacked, and evaluate whether any new treatments or hospitalizations change the plan. Once supplemented and—if required, supported by a physician—send the life care plan to your economist for updated calculations.
Organize your trial notebooks. Ask yourself which types of trial notebooks have been most helpful in your last 10 cases. They may include
- hot documents, such as the five to 10 most important medical records
- law specific to your case, such as in limine issues or rules of evidence
- admissions, such as answers to interrogatories or corporate designee testimony
- plaintiff witness information, including a section for each with the proposed examination, deposition abstract, condensed deposition transcript, any important documents, and contact information
- defense witness information, with identical sections minus contact information
- opening and closing outlines, updated with new information or ideas.
Have your research ready. You should have a clear idea of the factual and legal issues that the defense will attempt to raise at trial. Even if you believe black letter law supports your theory, be prepared to support your argument with the law if defense counsel brings it up before a judge who may be unfamiliar with the issue.
If you intend to use articles, textbooks, or treatises, you must know the jurisdiction’s particular rules and supportive case law about what can be admitted into evidence. Carefully review the document to make sure it does not impeach the testimony of your expert. If you are using it exclusively to impeach a defense expert, you may, depending on the jurisdiction’s rules, need to disclose this to the defense.
Request any relevant literature or policies from the defense. Jurors may expect to see documents that show how a defendant was supposed to act and if he or she violated a specific rule. You and your team should extensively research available literature (such as finding out whether medical articles and texts published prior to the defendant’s acts support those acts) and request any and all policies, procedures, and protocols from the defense (such as those from a defendant hospital). If you are having trouble locating articles, ask your experts for assistance—an expert who is a leading authority in the field can usually refer you to the most helpful articles and texts much more quickly.
Update discovery responses. Review discovery responses to ensure accuracy and completeness. Often created early in the case before all factual information is known, supplement them as necessary so you will not be precluded from pursuing all relevant theories and producing proof of all the elements of your case.
Update witness examinations. This is a continuous process, so continue editing your direct and cross-examinations.
Develop impeachment evidence. Have you obtained and reviewed prior testimony or articles? What parts of your theory do you believe you can establish through the defense? Are the defense experts’ opinions inconsistent with each other? Talk to your state and national trial lawyer colleagues about experts who testify frequently.
Plan for jury selection. Frame your voir dire questions to maximize responses that may reveal biases. Plan your strategy, which you will test out during your focus group next month.
Update lien information. This is one of the most overlooked areas and one that attorneys used to tackle only at the case’s conclusion—not anymore. Address liens and subrogation interests early, and periodically update the information.
The Trial Run
You will devote one full day to a single case. Work in short time blocks of 90 minutes maximum, and consider renting a hotel conference room to minimize distractions. If you hold this at your office, make sure there are no phone calls or other interruptions. Order lunch in.
Remember that you have three general goals for your Trial Run: Determine the case’s weaknesses and any missing proof, identify the case’s strengths and how to maximize those, and create a to-do list that goes through the start of trial. To meet these goals, your trial team must give honest feedback—follow each point below with a round of critiques and make a to-do list on every point that must be followed up.
Opening statement. As you review your opening, ask: What themes and areas did you focus on, and are there others to include? Did you explain scientific terminology in an understandable way? How did it flow?
Go over each witness exam. With your team’s input, craft a master list of the facts to establish with each witness examination. If necessary, reorganize question order and fill in any missing ones. See if any concepts or testimony need better explanations or demonstratives.
Review your closing argument. Although your closing is only an outline at this point, you should be able to incorporate themes and testimony and determine whether certain demonstratives successfully convey your points.
Narrow the witnesses. Every witness you wish to call should move your theory of the case forward—if not, do not call him or her. By reevaluating each witness, you can streamline your case and make it easier for jurors to understand.
Decide on trial order. Develop the order of witnesses and your proof by trial day, maximizing your strongest testimony and witnesses.
Develop a strategy for tackling defense objections. Review your evidence for any objectionable portions, such as authenticity concerns. Decide how to respond and what you need to support your position.
Schedule the focus group. This should occur within two weeks.
Schedule mediation, if applicable. If the defense requests mediation, it is routinely closer to the trial date—and if one is scheduled, this benefits your client, because you are ready to try the case.
60 Days to Trial
At two months out, keep your case moving at full speed.
Conduct focus groups. With your takeaways from your Trial Run, determine which exhibits and demonstratives worked with the focus group members. Identify anything that bothered them, what facts they assumed, any missing proof that was important to them, and anything they may have misunderstood.
Refine demonstrative evidence. Evaluate how the focus group members responded to your demonstratives, and rework them if necessary. Your experts should already have reviewed and supported them, but make sure they agree with any updates you make as well.
Continue client preparation. Now is the time to do a dry run of the direct and cross-examination with your client. Do not interrupt the exam—treat it as the real thing—and have another team member cross-examine your client. Once complete, determine areas that need work.
Send experts another reminder. If you have not done so already, confirm the exact date on which they will testify at trial, and schedule one or more trial preparation dates for each expert.
Update motions in limine. Put the finishing touches on your previously identified issues, and file the motions.
Prepare and serve trial subpoenas. Determine which witnesses the defense will accept, including corporate designees, and which ones you will need to personally serve. Determine whether your client or family member witnesses require subpoenas.
Consider a request for admissions. Most discovery orders require all written discovery to be served more than 30 days before the close of discovery. If you have any missing proof, consider submitting a request for admissions.
Research members of the jury pool. If your jurisdiction provides a list of prospective jury pool members, find out what you can about them.
Prepare pretrial conference filings. You should already have these in draft form, so review and finalize the pretrial statement, jury instructions, voir dire questions, verdict sheets, and other pretrial filings.
Recharge. Take a break from the case and your office. You need to be ready for the final push and the trial itself.
30 Days to Trial
You are now in the home stretch—and knowing that you are well prepared should give you a sense of calm and confidence.
Confirm logistics. Confirm all flight and hotel arrangements for witnesses and the trial team. Create a master list with all relevant contact information.
Transport the case file. Have the file ready to be delivered to the courtroom.
Continue client and witness preparation. Make sure your client knows the specifics of where to be and when, as well as what to wear to trial. Remind your client that he or she is being observed from arrival at to departure from the courthouse. Do another practice run of direct and cross-examinations.
Visit the courtroom. And take the client with you to put him or her at ease.
Review courtroom technology. Figure out courtroom capabilities, whether the court requires training on its equipment, what you will need to bring, and any necessary steps to get your equipment through courthouse security.
How much stronger did you feel about your client’s case when you were ready to try it 60 days before the actual trial date? Were you energized from the preparation? Your confidence level—combined with your preparation—is critical to obtaining the best possible outcome for your client.
Christian C. Mester is a partner at McCarthy, Winkelman & Mester in Lanham, Md. He can be reached at email@example.com.
- It is much harder for the defense to keep certain documents concealed when they must place a corporate representative—who is the person most knowledgeable about the relevant topic—under oath. Even if the defense has represented that no further documents exist, additional documents are often located when you depose the most knowledgeable person.