September 21, 2016 Practice Points

Trial Preparation: 3 Tips for Starting with the End in Mind

Early planning is key to trial readiness

by Mark Romance

Let’s face it, most commercial litigation cases settle before trial as parties often try to avoid the expense and risks associated with a jury trial. But are you prepared to face the jury when your most important client decides to go the distance? Did you take short cuts along the winding path of pre-trial litigation that might make it difficult to try your case? Here are three things you should keep in mind at the beginning of the case so that you are not caught unprepared if your case ultimately goes to trial.

1. What is your theme? At the outset, lawyers in commercial cases often focus on the legal arguments, raising claims and defenses destined to be the focus of summary judgment, and Daubert motions. These issues are, of course, decided by the judge, not a jury. Judges understand the strengths and weaknesses of the law and the expert reports that support or refute the claims and defenses in the case.

But at trial, even in commercial litigation cases, it is the story that most resonates with the jury. With that in mind, you should start developing a theme that will resonate with jurors when you first meet with the client in a new case. At the beginning of your case, identify witnesses, documents, and facts that will best tell your story at trial. Consider what your demonstrative exhibits will look like from the start of the case. Then, as you approach each phase of the case, make sure that you obtain discovery to support your theme and refine your demonstrative exhibits. By the time you get to trial, you will already have witnesses who have testified in deposition, who relied on supporting documents or other evidence, and strong demonstrative exhibits to help you tell your story.

2. Take depositions for use at trial. Depositions are one of the most critical aspects of discovery. Depositions are useful to find out what evidence is out there that will support your side of the case and what you may be facing at trial. Locking down an adverse witness’ testimony in deposition is critical to establish facts needed for summary judgment and to prepare for cross-examination at trial. But depositions also serve a critical function that many lawyers who do not often go to trial overlook. As a matter of procedure, adverse party deposition testimony can be presented to the jury, ideally by video, rather than being read. Adverse party deposition testimony can be a powerful tool at trial as long as the testimony is neatly preserved for use at trial. When you take an adverse party’s deposition you should prepare lines of questioning that can easily be presented to the jury to support your theme of the case.

Similarly, many lawyers do not ask questions of their client during deposition, “saving” their testimony for trial. But a trial-ready lawyer will ask questions in a deposition that are favorable to the established theme because if the adverse party presents the deposition testimony to the jury, parties have the right to designate additional, favorable testimony to also be presented. This is a way to balance some harmful testimony with favorable testimony. While jurors universally dislike video testimony, presenting the video testimony of an adverse party in your case in chief can have an important impact on your ability to present your theme at trial, as can favorable “cross-examination” deposition testimony of your own client.

3. Develop jury instructions early. Jury instructions can be one of the most important aspects of winning a case, whether at trial or on appeal. At trial you will need to introduce evidence to support all your jury instructions, and your ability to do so does not start at trial. Preparing jury instructions should begin when you draft your complaint or your answer. Many lawyers develop what is known as an “order of proof” for trial, which is essentially a checklist of elements of facts needed to be proven to establish claims and defenses. It is critical to know at the beginning of the case what elements must be proven by you and your opposition. Jury instructions will guide you as to what must be proven at trial.

By focusing on what your jury instructions will look like at the beginning you will be able to properly frame your pleadings and tailor your discovery to prepare your case for trial. Developing evidence on the required elements will allow you to frame your jury instructions both legally and factually to support your theory of the case. Develop your instructions early in the case, and refer to them every time you prepare for a deposition, serve written discovery requests or responses, and in preparation for summary judgment. By focusing on your jury instructions early, you will have prepared and followed a game plan that will save you unnecessary stress and last minute preparation, and show you the way to victory.

While most cases never reach trial, starting with the end in mind will allow you to develop a clear game plan that provides you with an easier path to trial, one that is less stressful, and gives you the best chance to present a winning case to the jury.

Keywords: business and commercial, depositions, jurors, jury instructions, litigation, trial, trial themes

Mark Romance is a partner at Day Pitney in Miami, Florida.


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