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November 11, 2014 Articles

Seven Lessons for Litigating Your First Case Through Trial

Universal lessons to help you to manage your case and obtain a favorable verdict.

By Michael Luongo

The vast majority of civil lawsuits will never go to trial. Trial is costly and time-consuming, and there is no guarantee that a judge will accept your interpretation of the law or that a jury will side with your version of the facts. Given this uncertainty, most litigants will work to negotiate with their adversaries to achieve a mutually agreeable settlement outside the courtroom.

Not all cases are amenable to compromise, however. Whether the parties are too far off in their settlement demands or the plaintiff is seeking relief that is untenable to the defendant, trial may become the only viable option to resolve a claim.

One of the first files I took on as a new attorney turned out to be such a case. What’s more, I would be defending the lawsuit on my own, without co-counsel to lean on. While litigating a case from the pleadings through trial may seem like a heavy burden for freshly minted attorneys, there are several universal lessons that I took away from the experience that can help you to manage your case and best position your client to obtain a favorable verdict at trial.


1. Approach Every Case with the Mindset that It Could Go to Trial
Successful trial strategy begins at the earliest stages of litigation. The pleading stage is the first opportunity to assess the plaintiff’s claims and develop your theory of the defense. The manner in which you plead a case will set the foundation for the lawsuit to follow.

Even if your case does not proceed to trial, setting forth a strong defense early will help to achieve an early dismissal of the action or provide leverage in the negotiation of favorable settlements. Before answering a complaint, defense counsel should take the time to discuss the facts of the case with their client and perform preliminary research on all available defenses. Doing so will concentrate your attention on the critical issues in the lawsuit and identify potential weaknesses in the plaintiff’s claims. With these issues in mind, counsel can then focus on how best to respond to the complaint.

When answering factual averments in the complaint, counsel must be precise in their responses. Pleadings must be answered truthfully, but you should be cautious about adopting a plaintiff’s choice of phrases or description of events. A seemingly innocuous concession at the early stages of litigation could become a significant point of contention at a later stage of litigation. Pleadings can be amended, but it is difficult to withdraw an admission absent good cause.

Likewise, counsel must be thorough when setting forth affirmative defenses. A defense that does not seem particularly significant at the pleading stage may develop into the dispositive issue at trial. And failure to plead an affirmative defense up front could mean waiver of that theory. Accordingly, counsel should take the time to develop all reasonable defenses early to ensure that they are properly preserved through the course of litigation.

2. Support Your Defense with Focused Discovery 
Discovery is your opportunity to develop the factual record and obtain evidence essential to your defense. Effective discovery can make the difference in your ability to file a successful dispositive motion or negotiate an advantageous settlement. If the case cannot be resolved early, the record and admissions ascertained in discovery will become your primary source in preparing for trial.

It is important, therefore, to approach discovery with a clear strategy for obtaining the facts that will support the essential elements of your defenses. One of the primary methods is through carefully crafted interrogatories. Effective interrogatories will be specifically tailored to the particular claims at issue. Before drafting interrogatories, it is helpful to review the complaint and the standard jury instructions applicable to each count and then draft interrogatories with a clear vision for how they will fit into your defense strategy. Good interrogatories will clearly define all relevant parties and terms and use consistent terminology throughout. Further, interrogatories should be drafted in a simple, clear, and concise style. The more focused your interrogatories, the less likely your adversary will be able to object or otherwise avoid providing the requested information.

Similarly, taking effective depositions demands a thorough familiarity with the facts, the legal issues, and the parties’ theory of the case. To prepare, you should first review the pleadings and refresh yourself with the legal concepts that will be at issue in the lawsuit. You should then carefully analyze all written discovery and document production in the case, taking note of any documents that could be used as exhibits. Finally, you should research your witnesses’ background and affiliations, and gain a general familiarity with their alleged conditions or claims when relevant.

Once you have a working knowledge of the case, you can begin to prepare a deposition outline for each witness you intend to depose. Your outline will serve as a guide for the topics you should cover in the deposition and the exhibits you intend to introduce, and help to organize your questions and exhibits in a logical manner. As general rule, avoid writing down specific questions in your outline. Instead, focus on concepts so that you can naturally adapt and respond to the witnesses’ answers. The deposition should proceed as a dialogue, not a rigid set of predetermined questions.

3. Communicate with Your Client
Litigation can be demanding on attorneys, but it can be especially stressful for their clients. Many clients have never been involved in litigation and are unfamiliar with the stages of a lawsuit. Attorneys can help to mitigate these concerns through clear communication.

If your client is unfamiliar with the legal process, take the time to explain each stage of the lawsuit. Your client should have a basic understanding of the purpose of the pleadings, the types of discovery that will be exchanged, and the likelihood that a case could proceed to trial. Explaining these processes up front will help your client to focus on the important aspects of litigation and will ultimately allow you to work more efficiently and effectively.

Good communication also entails proper preparation of your client. Your client should enter each stage of the lawsuit knowing exactly what to expect and what is expected of him or her. Prior to trial, your client’s first opportunity to take an active role in the litigation will likely be at his or her deposition. Your client may be understandably anxious. However, you can help to alleviate these concerns by good preparation. Take the time to explain the process for taking a deposition, the persons who will be present, and the issue that you expect opposing counsel to cover. Further, make clear to your client what your role is and what is expected of the client. Notably, the client should answer only the question that is asked and should avoid divulging any superfluous information. Further, you should instruct your client not to bring any documents or devices to the deposition that could be inquired into by the opposition, including a cell phone. Lastly, your client should understand that you are there to protect his or her interests and will object to protect any privileged or confidential information, but that your role as a defending attorney will be limited.

4. Master the Law and the Evidence for Effective Trial Advocacy
Confidence is important to success in the courtroom. To be confident, however, you must be proficient in the law and the facts, and have a clear plan for presenting your evidence. Trial preparation begins with familiarity with the court. Learn as much as you can about the judge’s background, reputation, and professional affiliations. You should further familiarize yourself with the judge’s personal procedures and research the particular practices of the judge at trial. The judge’s attitude and demeanor will play an important role in how you choose to present your evidence and what strategies are effective at trial.

After researching the judge’s individual procedures, you should familiarize yourself with the trial process in general. If it is your first case, consult a trial handbook or trial-method book to gain a general fluency with the trial process. In addition, take the time to review your particular jurisdiction’s rules of evidence. You should have a working knowledge of admissible character evidence, methods of impeachment, expert testimony, the hearsay rule and its exceptions, and authentication of documents.

Once you have a familiarity with the trial process and rules of evidence, you can begin to review the discovery in your case and prepare your trial materials. It is helpful to create a master trial memorandum with outlines for each of the witnesses you intend to examine at trial. When preparing cross-examination, you should have a general understanding of the topics you will need to cover. As you review the evidence, you can begin to draft specific questions that will elicit testimony to support each topic. Generally, cross-examination questions should lead the witness, be narrowly focused, and should have a specific answer that is directly supported by the record. Further, every cross-examination question should include a citation to the record that supports your intended answer. If a witness contradicts himself or herself, you should be able to immediately turn to the witness’s deposition or other document that supports your presentation of the facts.

In contrast with cross, direct examination questions must be open-ended. When preparing direct examination, it is useful to create a general outline of topics and ideas that you will cover and exhibits that you will enter into evidence. You should review your outline with your witness and explain the philosophy behind your questions along with the points that you are trying to convey. When questioning the witness at trial, listen carefully to the witness’s responses. If a question you intend to ask has already been covered, move on. If the witness has failed to address a specific point, continue to delve into that topic area. Lastly, if the witness drops the ball on any particular question, proceed confidently as if no error had been made.

To conduct your cross- and direct examination, you will need to prepare exhibits binders with all of the exhibits that you intend to introduce at trial. If the exhibits are voluminous, it may be beneficial to have a separate binder for each witness, with all of the documents relevant to that witness. It is good practice to offer exhibits into evidence as they are introduced in the course of direct and cross-examination. However, depending on the judge’s particular practices, counsel may agree to offer all of the exhibits into evidence after the close of testimony. This practice is intended to promote efficiency but can be problematic if you have not kept track of the exhibits that you used during trial. Therefore, be sure to draft a master exhibits list and mark off documents as they are introduced through witness testimony. Further, your exhibit list should include a brief description of the content of each exhibit so that the exhibits are readily identifiable to the court and your adversary. In this way, you can smoothly offer exhibits into evidence without complication.

 After you have prepared all of your trial materials and have developed your defense strategy, you should draft your opening statement. The opening should introduce a theme for your case—one or two sentences that capture what the case is about and the reason why your client should prevail. The opening should be simple, tell a story, and capture the jurors’ attention. Practice the opening until you are fully confident in your delivery. The opening statement is your first chance to make an impression on the judge and jury; it should be strong.

5. Anticipate the Unexpected
Anything that can go wrong will go wrong—especially when the stakes are high. Good attorneys can mitigate the chance of mishaps by planning for the unexpected. Initially, attorneys should review all trial materials to ensure that they have all necessary exhibits, notes, and documents, as well as extra pens, legal pads, and exhibit markers on hand.

In addition, you should be sure to have contact information for your witnesses and the court and judge prior to trial. The night before trial, contact your client and witnesses to confirm that there are no issues and that everyone is prepared to proceed. Arrange to meet your client at the courthouse early.

If you are planning to use electronic devices at trial, make sure to have a backup or hard copies available as an alternative. If you are working with hard copies of exhibits and documents, you should be sure to have additional copies at the ready. Although you cannot plan for all contingencies, taking simple measures can often make the difference in preventing disaster.

6. Manage Client Expectations
There is no guarantee of success in litigation. No matter how skilled your defense, or favorable the facts and law, the outcome of a trial will ultimately depend on the decisions of other individuals who are out of your control. While you cannot dictate how a judge or a jury will rule in your trial, successful litigators can take steps to manage client expectations regardless of the outcome.

When immersing yourself in a lawsuit, it is easy to become persuaded by your own advocacy. You may feel confident that the law strongly supports your side and that no reasonable person could align with the plaintiff’s version of the facts. However, attorneys should be cautious that their zealous advocacy does not give clients a false sense of confidence. It is thus essential for attorneys to step back and take an objective view of the strengths of their adversary’s position and the potential limitations of their defense.

Attorneys should communicate clearly and honestly with their clients about the weaknesses of their defense and the realistic likelihood of success. It is far better to under-promise and over-deliver than to promise unrealistic expectations and subsequently fall short. The client’s expectations will likely be the determining factor in his or her level of satisfaction with your performance.

7. Be Persistent
Taking the lead in the defense of a lawsuit can be challenging for young attorneys, but it is also highly rewarding. The plaintiff’s counsel may be particularly tenacious, and you may encounter pretrial rulings that you feel are in error. However, with persistence, thorough preparation, and effective litigation strategies, you can help to ensure that your client will be protected and that the interests of justice will prevail.

Keywords: litigation, professional services liability, trial, discovery, client communication


Michael Luongo is an associate at Goldberg Segalla in Philadelphia, Pennsylvania.

Copyright © 2014, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).