1. Prepare a Budget and Perform a Cost-Benefit Analysis
Clients begin wanting victory and vindication. But does your client want these at the expense of legal costs and fees that outweigh its potential recovery? If you represent a fiduciary, will your legal fees be viewed as reasonable, as they must be under the controlling documents and law, in order to pay legal fees from the estate or trust fund? Is your client prepared to bear the significant costs of depositions and expert fees in addition to attorney fees? Will it be prohibitively expensive (or impossible) to collect a judgment you obtain? Your budget will help you discuss these matters at the outset and assist your client in making informed decisions about whether and how to proceed.
2. Mind Your Caption
The details of the parties listed on both sides of the “v” in your caption should not be taken for granted. A party once intervened in an ongoing case and found that there was a plaintiff missing: a man who served as a fiduciary for different entities had been named only in one of his fiduciary capacities. Fortunately, there were no statute of limitations issues, and the omission was corrected by an unopposed, swiftly granted motion. Had this gone uncorrected, there would have been a judgment in favor of the entity not entitled to the bulk of the assets—in other words, it would have been an empty win (and open door through which the defendant could largely have escaped). Be sure at the beginning about the parties in whose favor and against whom you want the verdict returned at the end.
3. Develop Your Theme
Volumes have been written about how to develop your theme, and this topic deserves all the attention it receives. Place your theme at the center of your trial preparation. It informs the discovery requests you will issue, the questions you ask at depositions, your exhibit choices, and arguments you pursue in motions. While the theme may evolve by necessity during the course of your preparation, it influences every task on your road to trial.
4. Draft Jury Instructions Early
“Careful trial lawyers prepare instructions at the beginning of the case as a ‘living’ document, revising and supplementing them as the case moves toward trial. These instructions can help you win at trial and preserve error for appeal.” Sylvia Walbolt & Cristina Alonso, “Jury Instructions: A Road Map for Trial Counsel,” GPSolo Mag. (Sept. 2004). Lawyers should compare their proposed jury instructions to the pleadings to be sure every issue is covered. See id.
Why this oft-mentioned focus on jury instructions? A commentator in the ABA Commercial & Business Litigation Section explains:
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.
Mark Romance, “Trial Preparation: 3 Tips for Starting with the End in Mind,” Com. & Bus. Litig. Prac. Points (Sept. 21, 2016).
5. Envision the Order, Verdict Form, or Judgment
As litigators, much of what we do is motion practice leading up to the ultimate trial or dispositive hearing. We meticulously draft, compiling supporting affidavits and exhibits. Are we missing the forest for the trees? We must constantly evaluate as we prepare pretrial motions: “What exactly is it we want to get out of this?” What will the order granting this motion say, and will it be easily construed and implemented? Sketch out your desired entry or verdict form.
6. Compile a “Best Documents” File and Ensure Admissibility Along the Way
It’s tough when you’ve selected a great trial exhibit that becomes challenging to admit at trial because you haven’t obtained stipulations or admissions, or taken other necessary steps before trial. Anticipate foundational, hearsay, and other challenges, and plan to overcome them through early preparation.
7. Make a Plan to Keep Tabs on Your Witnesses
Cases can take years to prepare for trial, and “life happens” to our witnesses along the way. Compile and update a witness contact list. Preserve the testimony of key witnesses through depositions where necessary. Keep tabs on witnesses’ whereabouts. Communicate with them so they can be readily located (and available) when your case goes to trial.
Now, let’s begin.