Q: How long did you work on the case before it went to trial?
JH: My involvement started with removing the matter from state court to federal court and preparing an answer to the complaint nearly two years before trial.
TB: I got involved at the summary judgment stage, which in this case was 10 months before trial and, incidentally, also my first week as a new associate.
Q: What was your role in the case leading up to trial?
JH: I was the primary associate on the matter, which included everything from fact gathering, witness interviews, depositions, and attending mediation to drafting dispositive motions and trial preparation.
TB: I primarily was in charge of doing legal research and drafting the various motions and other pleadings that needed to be filed. The trial judge in this case ordered extensive briefing regarding experts, so I became extremely well-acquainted with Daubert. I also drafted other pre-trial filings such as motions in limine and jury instructions.
Q: What was your role at trial of the case?
JH: I was second chair counsel, including determine exhibits and witness attendance, researching jury demographics, drafting voir dire questions, conducting direct and cross examination of multiple witnesses.
TB: I was an active member of the trial team in the trenches every day. My specific role revolved primarily around research and handling any motions that needed to be filed during trial, such as a motion for judgment as a matter of law. I worked on evidentiary issues, compiled juror information, wrangled witnesses, and generally did any other task that needed to be done. I also got the opportunity to cross examine two fact witnesses.
Q: What did you learn from your experience about planning for trial?
JH: Planning is a never ending process, which takes a village to execute smoothly. The more detailed the plans, with specific assignments, the better.
TB: The more planning the team can do on the front end the more smoothly things will run. I was surprised by the sheer amount of tasks that have to occur leading up to trial. By the time you actually get through filing all of the pretrial documents, putting together the exhibit lists, etc., there is not much time to just prepare for trial. So as much as possible preparation for trial has to start well before, or you just run out of time and things are sloppy.
For example, the logistics of making sure all of your exhibits get into evidence takes a huge amount of planning, negotiation, and organization. You have to decide what exhibits are going in. And when are they going in? How are they going in? How will the jury be shown the exhibit? And of course, you need to have the original and copies ready when the time comes. If those steps don’t happen prior to witnesses getting on the stand, it can slow things down, ruin the rhythm of an examination, and upset the judge. You are juggling so many moving parts every day at trial and then at 5:00 p.m. you have to start witness preparation for the next day, handle motions, talk to the client and witnesses, etc. There just is a very limited amount of time so you have to plan as much as possible before you get there.
Q: What surprised you the most about being in trial?
JH: The amount of negotiations with opposing counsel during trial for the order of witness testimony, admission of exhibits, stipulations of fact and trial procedures. For a trial to run smoothly, it is necessary to have a level of working relationship with opposing counsel. It allowed us to admit several exhibits that could have been very litigious had there not been cooperation between counsel.
TB: That you need to expect the unexpected. There were multiple times where something happened that was just completely unexpected. In law school and as a young lawyer, it is beat into you so much to prepare, prepare, prepare, and that way you will avoid surprises. But a jury trial is so dynamic that you absolutely have to be able to just think on your feet. That’s what makes it really fun though.
Q: What do you wish you had known going into trial that you didn’t beforehand?
JH: The dynamics of an “open cross examination.” The parties had many overlapping witnesses, so for efficiency the judge allowed open cross examinations. While it made for an easier cross examination, it also made for a longer examination and changed the dynamics of re-direct. Ultimately, I think it also changed the witness order for both sides and meant that our case in chief as the defense was substantially shorter because many of our witnesses had already testified.
TB: Generally, I wish I had a better idea of how the mechanics of trial were going to work. I had so many procedural questions about how things would happen at trial. Going into trial, the thought of writing a brief was much less daunting than trying to get an exhibit admitted. Of course the nuts and bolts of trial is just not something they can really teach in law school, so as a new lawyer it adds to your nervousness.
I also wish I had known what things would be helpful to have with me at the table and what would not. For example, having a book with common evidentiary objections and foundations is invaluable. By the second half of the week, I had borrowed the partner’s Thomas Mauet trial practice book from the 1980’s and used it frequently. That book definitely ranked up there with post-it notes as the most valuable item at the table.
Q: What do you think was the hardest part about planning for or being in trial?
JH: Remembering that the case is new to the jury and they only know the evidence that is presented through witness testimony.
TB: Being in trial was incredibly physically and mentally demanding. You have so much adrenaline going during the days in court, and then you have to turn around and prepare for the next day after you get out of court at 5:00 p.m. or later. Needless to say, keeping your energy up and maintaining your mental edge for long periods of time was challenging. Along with that, because of the nature of trial, anything going on in your practice or personal life just really takes a backseat. Going through my e-mail at the end of trial was more unpleasant than being in trial. Having a good support system both at home and at the office was really important.
Additionally, Betsy and I work out of the Mobile office so we had the added challenge of trying a case on the road. While we were fortunate that our firm does have a smaller office in Nashville, we still had to coordinate logistically between offices and with out-of-town vendors, who we weren’t familiar with-- not to mention living out of a suitcase and being away from family for an extended period. Also, not being familiar with the local rules and customs of our venue was frustrating. While studying the Local Rules published by the Court is helpful and certainly a must, there are just some procedural and evidentiary nuances that you are not going to know unless you are familiar with the way things work in a particular jurisdiction.
Q: What was your favorite part of being involved with the case?
JH: It was my first federal jury trial and the partner that I was working with took the time to mentor as the matter progressed.
TB: Getting to work with a great team of people, including a fabulous partner who was willing to take a chance on letting new yet eager young lawyers take on some real trial tasks. It also happened to be a really interesting case in which I definitely had a personal investment, so getting to see it all the way through was a great experience.
Q: What was your least favorite part of being involved with the case?
JH: The outcome risks associated with trials. Most cases are resolved by agreement before trial, which allows the parties to control the outcome. The trial process takes the outcome out of the control of the clients and attorneys. While I certainly want to be in the courtroom at trial, my least favorite part is the inability to conclusively control the outcome.
TB: The outcome. I really believed in our case and it was hard to accept that the jury just did not. And of course we spent hours analyzing why it didn’t come out our way.
Q: What are you proudest of with regard to your personal performance leading up to and during trial?
JH: A compliment from the trial judge. I cross examined a witness and needed to admit a lot of exhibits during the process. I had the other side stipulate to the admissibility of half of the exhibits and then asked 100 questions to which “yes” should have been the only response. The cross examination went very smoothly and quickly. At the next recess following the cross examination, the judge made it a point to compliment the organization and efficiency of the cross-examination.
TB: Leading up to trial, the best moment for me was getting the opinion back on the admissibility of the plaintiff’s experts from the trial judge. The whole team had put in a significant amount of work on the expert briefs, not knowing whether it would pay off. I put together the legal arguments and definitely had a personal stake in the decision. We ultimately had one of the plaintiff’s experts excluded completely and another’s opinion pared down substantially. It felt like both a team and personal victory.
At trial, I probably was most relieved when I got done with my second cross examination without causing any damage to our case. I actually got a few good nuggets out of it too. I was proud anytime something I had done was useful to our team. Whether it was winning the legal argument on some contested jury instructions based on a brief I wrote, or getting the JML motions drafted and to the court on time, anytime I directly contributed something useful to the team was a good moment.
Recall your own first experience getting ready for trial? Or have a practice pointer related to other pretrial practice or discovery issues that came to mind? Contact Matthew Bakota with the Pretrial Practice and Discovery Committee to discuss putting your own practice pointers in print to share them with your fellow ABA members.
Matthew Bakota is an associate with Buckley King in Cincinnati, Ohio.