April 20, 2020 Articles

How to Avoid Post-Discovery Pitfalls During Trial Preparation

This refresher provides insight into how to avoid missteps in civil litigation after discovery is complete.

By Marjorie J. Peerce and Gerard Belfort

Trial preparation must occur at the onset of any dispute. At multiple points throughout the litigation, especially after discovery is complete, trial counsel should review their trial budgets and revise them, if necessary, to ensure that they account for new issues revealed in discovery. After discovery is complete, trial counsel must assess the need for certain motions (motions for summary judgment, motions in limine, etc.) and witness preparation, among other pretrial tasks. Before fully moving forward with trial preparation, counsel should discuss any revised trial budget with his or her client and revisit any viable settlement options.

Analyze Your Trial Team

Trial counsel must analyze their trial team to ensure it includes the appropriate members. Depending on the circumstances, trial teams should include partners, associates, paralegals, and assistants. A focus on diversity is essential. In addition, trial counsel should determine the need for supplemental litigation support from vendors and consultants. These members of the team can help cut costs on tasks and save the lead attorney time. Lead attorneys should keep in mind that the team members who helped digest and prepare discovery are usually the most familiar with the documents. Keeping these members on the team can add great value. All of this, of course, must be accomplished in full consultation with the client and consistent with the engagement agreement.

In civil litigations, the key metrics that often drive the size of a trial team are the client’s budgets, the potential damages at stake in the litigation, the type and amount of information sought in discovery, and the potential consequences of any unfavorable precedent stemming from the litigation. For example, a client with a small dispute that has straightforward facts, little evidence, and low risk might agree to have an associate lead the entire litigation through trial. These are the best cases for junior and mid-level associates who want trial experience early in their careers. On the other hand, another client—one with a high-stakes legal dispute with complicated facts and the chance of making global headlines followed by thousands of lawsuits in the event that an unfavorable decision is rendered—might want to have a senior partner lead the litigation. These are two extremes, and most clients fall somewhere in the middle. Thus, it is important to communicate with the client point-of-contact about costs and risks to help the client and counsel determine the best team.

Know the Rules

Once the trial team is set, the members should meet to discuss strategy and specific tasks. At this time, all team members should review the applicable rules for the court and individual judge. Notably, in many jurisdictions, individual judges have their own practice rules, which can change during the course of a case. Judges can have specific trial procedures for pretrial orders, exhibits, and motions, among other matters. For example, a judge might require all parties that want to move for summary judgment to request a pre-motion conference before filing their motion. Failure to comply with the judge’s rule in this instance could lead to a denied motion or, at a minimum, a judge distressed that you failed to follow his or her rules. Having a judge skeptical that you can read and follow rules is not helpful to your client. Therefore, whether you are in your home court or an unfamiliar venue, knowledge of the rules of the court and the individual judge is critical, along with repeated review of the rules to ensure compliance. The rules matter and it can be detrimental to your client if you do not follow them.

Determine the Need for Post-Discovery Motions and Tasks

Trial teams can save significant costs after discovery is complete by taking time to evaluate the need for post-discovery motions and tasks. Common motions at this stage include motions for summary judgment and motions in limine, among others. To provide the best product in the most efficient manner possible, associates and paralegals can prepare drafts of pleadings with partner review. Again, frequent and open communication with the client is critical to ensure that the manner in which you are proceeding is consistent with the client’s wishes and goals. For example, a client may want to file motions in limine to prevent certain documents from being introduced at trial, but the client may also want to limit spending on the motions while the lead attorney prepares the witnesses. In this scenario, it might make sense for a junior member of the trial team to handle the motions in limine with the client’s consent.

In addition to the potential motions described above, trial teams will have to confirm the need for other pretrial related tasks post-discovery, such as completing deposition designations, preparing exhibits for trial, contacting witnesses, preparing witnesses for trial, preparing to cross-examine opposing counsel’s witnesses, and creating a trial notebook. Trial teams should also plan and prepare to exchange witness and exhibit lists, negotiate any pretrial stipulations, and attend any pretrial conferences. Contingent on the situation, trial counsel may need to complete jury-related documents, as well as prepare opening and closing arguments. Trial counsel should carefully assess the need for demonstrative evidence and aids and the time and cost associated with preparation in light of their usefulness at trial. Demonstratives may not be necessary in bench trials, depending on the judge and the facts. Finally, trial counsel must ensure that logistical arrangements are set, such as vendors, consultants, travel, lodging, office supplies, remote workspace, transportation, and food.

Trial teams should determine the exact tasks needed based on the type of trial at hand to avoid missing deadlines and ensure that their teams are working on appropriate tasks. A bench trial, for example, will not require jury-related tasks and may not call for fancy demonstratives or for counsel to spend as much time on opening and closing arguments. A bench trial, however, may require more briefing than a jury trial.

Expect the Unexpected

Notwithstanding all of the preparation outlined above, trial counsel must be mindful to budget for variable trial expenses. For example, trial counsel may have to object to opposing counsel’s deposition designations, exhibits, and motions, which can be anticipated but vary from case to case. In addition, trial counsel may need to appeal unfavorable decisions, so a full record below is critical.

In that regard, trial counsel will want to make sure that all objections are properly preserved, the jury charge (if applicable) is proper, objections to trial testimony are properly made, and the record is complete. On appeal, you do not want to have to prove that an error was plain error due to your failure to preserve it below.

Many post-discovery responsibilities are hard to forecast but will cost time and money to remediate. Trial counsel can maximize value for their clients here by remaining cognizant of the chance of these possible costs, communicating with their clients, and budgeting accordingly.


In sum, after discovery is complete, trial counsel should pause to examine their strategy to adapt to the information learned in discovery. Practitioners can maximize value for clients by taking a close look at their trial teams, knowing the rules of the judges and courts, determining the need for post-discovery motions and tasks, and maintaining a reserve for unexpected issues. Careful consideration of these post-discovery factors can help counsel reduce litigation costs, win cases, and keep clients happy.

Marjorie J. Peerce is a partner and Gerard Belfort is an associate with Ballard & Spahr LLP in the firm’s New York City, New York, office.

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