Table of Contents Late Fall 2007  •  Volume 3, Number 2

Trial Tactics
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Preparing For Trial

By Francisco Ramos, Jr.

Lay the foundation early on which to build your case.

When should you start preparing for trial? Days before? Weeks before? The best time to start preparing for trial is at the start of the case. Start every case with the end in mind--the verdict you want--and pursue that end during every step in the litigation. You cannot assume that your case will settle. Do not prepare to settle a case. Prepare to try it. That way, if you do settle it, it will be due in no small part to your trial preparation. And if you do not settle it, you will be prepared to try the case and win.

The following are some suggestions to keep in mind when preparing for your next trial.

Know the Jury Instructions

  The jury instructions give you a road map on how to defend your case. As soon as you get a new file, read the instructions. They will spell out the entire case--plaintiff's case and yours. To win, plaintiff needs to present evidence that meets every element of his or her prima facie case as spelled out by the jury instructions. Your job is to show that the evidence does not support one or more of those elements, or show that the facts support your affirmative defenses, which too are spelled out by the jury instructions.

  With the jury instructions in hand, you know what evidence to gather during every step of discovery. That way, every interrogatory or request for production you propound, every record you subpoena and every question you ask at deposition has a purpose--to chip away at plaintiff's case or build up yours.

  Having the facts you need to win shouldn't be an accident. If you don't know the jury instructions from the beginning of the case, the information you elicit that supports your case will be nothing more than coincidental. Know what you need to prove at trial and take the necessary steps to elicit that information.

Develop a Trial Theme

  At trial, you should have a theme around which you will build your case. The theme serves as the foundation of your case. Everything you do during the course of litigation should advance it.

  Keep it simple. Themes are simple and memorable. What's more simple and memorable than a tried-and-true cliché, a song lyric or a line from a movie? Turn phrases that your jurors are familiar with into the mantra for your case.

  Keep it short. What is your case about? Whatever it is you're trying to convey to the jury, be able to convey it in a sentence. Once you've reduced your theme to a sentence, reduce it to a word. Write that word on a note card and keep it on your desk. That word will guide you in every question you ask in deposition, every interrogatory you propound and every motion you file.

  Use a theme that embraces the entire case. If you pick a theme that ignores the weaknesses of your case, your opposing counsel may use it against you at trial. Find a theme that encompasses the entire case, not just a fraction of it.

  Start early. And remember to start developing your theme as early as possible. Once you get a new case, start thinking of possible themes toward which you can direct your investigation and discovery. If you wait too long to develop your theme, you may be stuck with discovery responses and deposition transcripts that don't fit your theme, forcing you to abandon it.

  Once you've settled on a theme, build your case around it. Everything you do must advance the theme. Every discovery request you propound and every question you ask at deposition must be directed to support your theme. Try out your theme in your pleadings and motions. Expose the judge to it, get him or her used to it and thinking in terms of it.

  But don't be married to your theme. As the case develops, your theme will develop. In fact, you may discover that your theme becomes unwieldy, so much so that you have to abandon it for an entirely different one. Don't be so married to your theme that you refuse to abandon it when you have to do just that. You are better off if you realize that your theme doesn't work early on in the case, when you have enough time to change it, than to realize it on the eve of trial, when it is too late for improvisations.

  Inject the theme into voir dire. Don't wait to introduce your theme to the jury. Introduce it to them during voir dire. To the extent permitted by the court and the rules, inject your theme into the questions you ask the jurors so that they can start seeing the case through the prism of your theme.

  Construct your openings and closing around it. The focus of your opening and your closing should be your theme. Remember the word that encapsulated it, the one on the note card on your desk? Repeat it, like the beat of a drum, through your opening and closing.

  Weave it into every direct and cross examination. Weave the theme into the questions you ask every witness at trial. You want every witness on the stand to speak on your terms.

  Ask yourself, "Why should I win?" Once you have an answer you have the makings of a theme. Find a catchy way of saying it, reduce it to as few words as possible and go sell it to the jury.

Think Your Case Through

  When you first start a case, develop a case strategy. Figure out what you need to do to win at trial and prepare a step-by-step plan to achieve your goal. Make a list of the facts you want to unearth, the documents you want to find and the witnesses you want to track down that will help you achieve that goal. Developing a plan ensures that everything you do has a purpose. Without a detailed plan, you're likely to pursue avenues and do things which do nothing to advance your case, or worse, undermine it.

Be Proactive

  Always be a step ahead of opposing counsel. You want to be proactive and set the course of litigation. Be the first to interview witnesses, to serve written discovery, to subpoena records from third parties and take depositions. Being first often affects the outcome of litigation and the course of trial. The first attorney to interview witnesses can take their sworn statements and lock them into their testimony. The first to serve discovery gets a jump on obtaining records and facts to support his or her case. Also, by pushing your case ahead, you show the other side and the judge that you and your client are in control.

Have a Checklist

  We use a checklist when we go to the grocery store to make sure we don't forget the milk or the eggs. We need lists when we litigate to make sure when we get to trial, we haven't forgotten the proverbial milk. Prepare your own checklist to make sure you have done everything that needs to have been done to be ready for trial. After you draft the checklist keep it near you, refer to it constantly and make changes to it as needed. A handy list will serve as a useful reference tool to ensure you are doing what you are supposed to be doing and that you are doing them on a timely basis. See sample Litigation Checklist on page 22.

Litigation Checklist

Getting Started

  •   • Review the file.
    •     -- Investigate the facts.
    •     -- Research the law.
    •     -- Evaluate liability.
    •     -- Evaluate damages.
    •     -- Develop a preliminary game plan.
  •   • Meet the client.
    •     -- Discuss your case strategy with him or her.
    •     -- Get client approval before spending his or her money.
    •     -- Keep the client advised through the course of litigation.
  •   • Determine who the relevant witnesses are.
    •     -- If they are not represented, interview them.
    •     -- Consider taking their sworn statements.
  •   • Determine what the relevant documents are.

Pleadings Complaint

  •   • Can you dismiss it?
    •     -- Lack of subject matter jurisdiction
    •     -- Lack of personal jurisdiction
    •     -- Insufficiency of process
    •     -- Insufficiency of service of process
    •     -- Failure to state a claim
    •     -- Failure to join a party
  •   • Should you move for more definite statement?
  •   • Can you remove the case to federal court?

Answer

  • Assert affirmative defenses.

  • Consider a counterclaim, cross claim or third party claim.

Scheduling Order

  • Early in the case, request that the court enter a scheduling order.

  • Have the order address:

    -- Expert disclosure

                • Who discloses first?

                • What information should be disclosed?

  • Scope of discovery

  • Discovery cutoff

  • Trial date

Retain Experts

  • Compile list of potential experts.

  • Interview experts.

  • Obtain and check expert's credentials.

  • Obtain expert's opinions.

    -- Don't disclose expert until you know what his or her opinions are.

Discovery and Investigation

  • Investigate opposing party's skills and reputation.

  • Investigate the judge's skills and reputation.

  • Investigate background of opposing party.

  • Does case warrant site inspection?

  • Does case warrant a medical examination of the Plaintiff?

  • Does case warrant surveillance?

Written Discovery

  • Serve interrogatories.

  • Serve requests for production.

  • Consider serving requests for admissions.

  • If necessary, move to compel.

  • Respond to written discovery.

Third Party Records

  • Determine who has relevant records.

  • Subpoena third party records.

    --In personal injury matter, obtain all:

                • Medical records.

                • Employment and income records.

  • Obtain signed releases for records that cannot be procured via subpoena.

  • Prepare chronology of all relevant records.

Depositions

  • Ensure you have gathered all the relevant documents.

  • Prepare your client for deposition.

  • Depose the opposing party.

  • Depose witnesses.

  • Depose the other side's experts.

    -- Investigate expert's background.

                • Obtain expert's prior depositions.

                • Obtain expert's writings.

                • Obtain documents expert is relying upon.

Dispositive Motions

  • Can you move for summary judgment?

    -- Lay the foundation in:

                • Written discovery.

                • Depositions.

                • Prepare affidavits.

Mediation

  • Discuss settlement with client.

  • Discuss settlement ranges with client.

  • Conduct sufficient discovery to make mediation meaningful.

  • Prepare mediation report for the mediator.

Pretrial Motions

  • Draft motions in limine.

  • Draft pretrial stipulation.

Trial

  • Summarize depositions.

  • Send out update subpoenas for records.

  • Send out witness subpoenas.

  • Prepare jury instructions.

  • Prepare voir dire questions.

  • Prepare opening statement and closing instructions.

  • Prepare direct and cross examinations.

    -- Prepare client for trial testimony.

    -- Prepare favorable witnesses for their trial testimony.

  • Prepare trial exhibits.

  • Exchange trial exhibits.

Post Trial

  • Draft post-trial motions.

  • Draft appeal.

  This checklist previously appeared in the ABA's Second Chair e-zine.

Have the Court Enter a Scheduling Order

  Some courts enter detailed scheduling orders that spell out each phase of discovery and pre-trial deadlines. Others provide less guidance. Take steps to ensure that a detailed scheduling order is entered spelling out deadlines for expert disclosure, who discloses first, physical examinations of the plaintiff, depositions, etc. This will help ensure an orderly build up to trial.

File Dispositive Motions Early

  If you can win on summary judgment, start building your case early and file your motion as soon as it is appropriate to do so. Early analysis can help you isolate the weaknesses in your opponent's case, one or more of which may be fatal.

Get Your Experts Lined Up Early

  Due to the expense, many clients prefer to delay the hiring of experts. Being an ounce wise, however, may prove to be a pound foolish. Experts can help you evaluate the strengths and weaknesses of your case and that of your opponent. An expert can help you develop your case strategy and determine what discovery to propound and what questions to ask at deposition. Experts are also a great source for trial themes.

Prepare a Trial Notebook

  The trial notebook. This is where you keep your battle plans. It is never too early to start devising those plans. When putting together your trial notebook, consider including a section for each of the following:

  Have a section for your trial themes. The case rises and falls on your trial themes. Include a section in your trial notebook for those themes. Also, think through what plaintiff's themes are likely to be. Try not to let your case play into those themes.

  Start with the closing argument. After you have thought through your themes, start at the end. Think through your closing argument and prepare an outline for it. Everything you do at trial will build up to this. Plan it out first to see how everything fits into this ending. As with your trial themes, reflect on your closing early in your case. Everything you do will be directed to those last minutes with the jury.

  Anticipate the legal issues that will arise during trial. Have a section for cases, statutes and regulations that will cover issues likely to arise during the trial. After you have lived with a case for a year or two (or more), you will anticipate what legal issues will come up at trial. No doubt, you have addressed most of them in motions in limine. The ones not addressed need to be addressed in the notebook.

  For voir dire, think about whom you want to keep off the jury. Many view jury selection as a selection process--picking the jurors you want to keep. Other view it as a de-selection process--finding the problem jurors you want off the panel. I'm in the latter camp. You need to find who the problem jurors are and build a case to have them stricken for cause. To do that, you need to first figure out the kinds of jurors you want to keep off the panel. Think through the characteristics these jurors have and reduce your thoughts to writing in your trial notebook.

  Rely on the evidence for your opening statement. When preparing your opening statement, think about what the evidence will show. You are going to be telling the jurors what to expect during the trial. If you don't live up to your word, you will lose credibility with them.

  Go through the depositions, the discovery responses and the exhibits and decide what evidence you want to share with the jury--evidence, when pieced together--breathes life into your themes. Don't say anything in opening that is not supported by an answer in a deposition, an interrogatory response, or some document that is admissible. When preparing the opening, annotate it, so that every fact you assert in the opening can be supported by the record, and stick the annotations in the trial notebook.

  Prepare cross examination outlines. Prepare a detailed cross examination for each of plaintiff's witnesses. Don't wait until trial to do this. For example, knowing what you will ask plaintiff's experts before trial will help you evaluate how much or how little you can use those experts to your advantage and how much they can hurt you. A detailed discussion regarding cross examination follows below.

  Prepare direct examination outlines. As with the cross examinations, prepare all the direct examinations before you step in the courtroom. You want to have met with your witnesses, know what they have to say and craft direct examinations which make the most of their testimony. Also, going through their testimony before the first juror is picked will help you develop the trial themes that you start introducing during jury selection.

  Know what exhibits you will need at trial. Make a list of all the exhibits you intend to use at trial, and keep the most important ones in your notebook.

  Your notebook should be one stop shopping. The point of having a trial notebook isn't so much the notebook itself, but the process of making it. In preparing the notebook, you have boiled down your entire case--voir dire, trial themes, the opening and closing and the examinations of witnesses--to a single binder. The binder is a great resource, but it isn't so much the binder, but the effort it took to put it together, that makes it so valuable.

How to Prepare an Effective Cross Examination

  I mentioned above the importance of doing cross examination outlines early. Cross examination may be the hardest thing you do at trial and it takes time to prepare an effective one. Consider the following when preparing yours:

  An effective cross examination starts at deposition. Some attorneys wait until trial to prepare their cross examination outlines. That's too late. You need to try out your cross examination questions at deposition. In fact, every question you intend to ask at trial should be asked at deposition so you know what answer to expect at trial. If it's an answer you like, then you have a ready made question for trial. If not, dump it. If it didn't work at deposition, it won't work in front of six jurors.

  Don't ask a question if you don't know the answer. Something you have heard over and over is that you don't ask a question at trial unless you already know the answer. Trial is not the time to be surprised. Be surprised when you investigate your case, when you receive responses to interrogatories or at deposition. But don't be surprised at trial. But how do you find out the answers to the questions you intend on asking? Simple. You find out the answers in deposition. Do your work in deposition to take the guess work out of trial. When you're at trial you will know what the answers are because they will be in black and white in the deposition transcript.

  Prepare a cross examination binder. Prepare a cross examination binder for every witness you will cross examine at trial. The binder will contain your cross examination outline and your impeachment materials.

  First, prepare a detailed cross examination outline. Start by brainstorming the topics you want to address during your cross examination. Such a topic could include witness bias. For each topic area, prepare a two column chart. On the left column, include all the questions you intend to ask the witness. I suggest, however, that instead of writing out the questions, that you write out the answers you expect to elicit from the witness. At trial, when you look at your outline and see the answers, you'll know what question to ask.

  In the right column, across from each answer you intend to elicit, cite the source of that answer, whether it's page 12 from the witness's deposition, the ER admission note or some other document. If you can't find a source for the answer, don't ask the question. Why? Because if the witness doesn't give you the answer you want, the one you have written down on your outline, you won't have anything with which to impeach him.

  That brings us to the second part of your cross examination notebook. Behind your outline, keep all your source documents, your de facto impeachment materials. The document you'll be relying on the most will be the witness's own deposition, where months, or perhaps years before, you tried out all your cross examination questions.

Make Sure You Have Done Everything That Needs to Be Done

  You don't want to be at trial and suddenly realize you missed an important affirmative defense or the video deposition of your expert isn't ready to go. Harking back to the checklist referred to earlier, create anther list with all the things that need to be done before you step into the courtroom. Consider including on that list the following:

    • Are there affirmative defenses you need to add?

    • Are there allegations you want to move to strike?

    • Have you deposed all the witnesses plaintiff listed?

    • As for the video depositions you intend to play at trial, have they been edited?

    • As for the depositions you want to read at trial, have you resolved the objections with the court?

    • Have you subpoenaed everyone you need to subpoena to appear at trial?

    • Can the courtroom accommodate the audio-visual equipment you plan on using?

    • Have you blown up all the exhibits you want to blow up?

    • Have you thought through what demonstrative aids will best help you get your theme across to the jury?

    • Have you examined the other side's exhibits?

    • Have you filed all the necessary motions in limine? Have you reviewed similar cases you have handled in the past to see what motions in limine you filed in those cases?

    • Did you order the court reporter?

    • Are you going to use the verdict form in your closing? If so, does it accurately reflect the verdict form approved by the court?

    • Has the court approved the jury instructions? This is particularly important if you intend to refer to any of them during the presentation of your case.

    • Are you going to use a juror questionnaire? Have you discussed it with plaintiff's counsel? Have you procured the court's approval?

  No doubt, you would include other items on your to do list. Make it as comprehensive as possible to ensure the trial runs as smoothly as possible.

Make Sure You Have Everything You Need

  When you prepare for trial, take the time to write a list of those things you will want to bring to trial with you. The following is my checklist:

    [ ] Trial notebook

    [ ] Hard copies of all deposition transcripts (originals, copies, minis) with all the exhibits

    [ ] All your exhibits

    [ ] All blow ups, charts and demonstrative aids

    [ ] A key pleadings binder

    [ ] A deposition binder with mini transcripts of all the depositions

    [ ] CDs containing copies of all depositions, exhibits, key pleadings, outstanding motions and relevant orders

    [ ] A list of names of the client, corporate representatives, witnesses, the members of the trial team, etc, with their office and cell numbers

    [ ] The rules of procedure, evidence and all relevant local rules

    [ ] Plenty of supplies

    [ ] An index showing what is in each banker box

    [ ] Audio/visual equipment, such as a television, VCR/DVD player, a view box and perhaps even an ELMO

Think of It Like a Play

  This is your show. Think about how you want it to start, the plot, the characters, the themes and the rhythm. Figure out which characters come on stage, how long they stay, and what their lines are. Think through how you want the play to turn out and what you consider to be a happy ending and how to get from here to there. You're telling a story. Tell it effectively and you are a long way toward winning the case.

Conclusion

  One of my partners, Spencer Silverglate, is fond of saying that trial preparation begins when the complaint hits your desk. To be effective, trial preparation has to start early and it has to be directed. When you first get a case, start thinking of the foundation on which you are going to build your case, and start putting together the pieces as early as possible. If you started early enough, you can discard a theme that doesn't work and start again. You have time. However, if you wait until a month before trial, or worse, a week or just a few days, you may find that you did not lay the foundation for your case. And then you'll discover, too late unfortunately, that you built your case on sand, and no matter how hard you try, you won't be able to keep it from tumbling over.

[FNa1]. Francisco Ramos, Jr. is a certified mediator and partner at Clarke Silverglate Campbell in Miami, Florida, where he practices in the areas of product liability, medical malpractice and commercial litigation. He can be reached at framos@cswm.com. Portions of this article were taken from prior articles Ramos has authored for such publications as the ABA's Second Chair and the Dade-County Bar Association's Bulletin.

David Zachary Kaufman, J.D., Ph.D. Websites: KAUFMAN LAW, A Professional Corporation; www.karatelaw.com; and Qui Custodes, the Personal Protection Blog.

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